Revisions to Auxiliary Installations, Replacement Facilities, and Siting and Maintenance Regulations, 72794-72813 [2013-28548]
Download as PDF
<![CDATA[
72794
Federal Register / Vol. 78, No. 233 / Wednesday, December 4, 2013 / Rules and Regulations
(q) Related Information
For more information about this AD,
contact Rebel Nichols, Aerospace Engineer,
Propulsion Branch, ANM–140S, FAA, Seattle
Aircraft Certification Office, 1601 Lind
Avenue SW., Renton, WA 98057–3356;
phone: 425–917–6509; fax: 425–917–6590;
email: rebel.nichols@faa.gov.
(r) Material Incorporated by Reference
(1) The Director of the Federal Register
approved the incorporation by reference
(IBR) of the service information listed in this
paragraph under 5 U.S.C. 552(a) and 1 CFR
part 51.
(2) You must use this service information
as applicable to do the actions required by
this AD, unless the AD specifies otherwise.
(3) The following service information was
approved for IBR on January 8, 2014.
(i) Boeing Alert Service Bulletin 727–
28A0133, dated October 5, 2011.
(ii) Boeing Service Bulletin 727–28–0131,
dated August 18, 2010.
(iii) Boeing 727–100/200 Airworthiness
Limitations (AWLs), D6–8766–AWL,
Revision August 2010:
(A) Airworthiness Limitation Instruction
(ALI) Task 28–AWL–18, ‘‘Fuel Quantity
Indicating System (FQIS)—Out-Tank Wiring
Lightning Shield to Ground Termination,’’ of
Section D., ‘‘Airworthiness Limitations—Fuel
Systems.’’
(B) Critical Design Configuration Control
Limitations (CDCCL) Task 28–AWL–19,
‘‘Fuel Quantity Indicating System (FQIS)—
Out-Tank Wiring Lightning Shield to Ground
Termination,’’ of Section D., ‘‘Airworthiness
Limitations—Fuel Systems.’’
(C) ALI Task 28–AWL–20, ‘‘Fuel Boost
Pump Wires in Conduit Installation—In Fuel
Tank,’’ of Section D., ‘‘Airworthiness
Limitations—Fuel Systems.’’
(D) CDCCL Task 28–AWL–21, ‘‘Fuel Boost
Pump Wires in Conduit Installation—In Fuel
Tank,’’ of Section D., ‘‘Airworthiness
Limitations—Fuel Systems.’’
(4) The following service information was
approved for IBR on June 6, 2007 (72 FR
28594, May 22, 2007).
(i) Boeing Alert Service Bulletin 727–
28A0126, dated May 24, 1999.
(ii) Boeing Alert Service Bulletin 727–
28A0132, dated February 22, 2007.
(iii) Boeing Service Bulletin 727–28A0126,
Revision 1, dated May 18, 2000.
(5) For service information identified in
this AD, contact Boeing Commercial
Airplanes, Attention: Data & Services
Management, P. O. Box 3707, MC 2H–65,
Seattle, WA 98124–2207; telephone 206–
544–5000, extension 1; fax 206–766–5680;
Internet https://www.myboeingfleet.com.
(6) You may view this service information
at FAA, Transport Airplane Directorate, 1601
Lind Avenue SW., Renton, WA. For
information on the availability of this
material at the FAA, call 425–227–1221.
(7) You may view this service information
that is incorporated by reference at the
National Archives and Records
Administration (NARA). For information on
the availability of this material at NARA, call
202–741–6030, or go to: https://
www.archives.gov/federal-register/cfr/ibrlocations.html.
Issued in Renton, Washington, on
November 15, 2013.
Jeffrey E. Duven,
Acting Manager, Transport Airplane
Directorate, Aircraft Certification Service.
[FR Doc. 2013–28994 Filed 12–3–13; 8:45 am]
BILLING CODE 4910–13–P
DEPARTMENT OF ENERGY
Federal Energy Regulatory
Commission
18 CFR Parts 2, 157, and 380
[Docket Nos. RM12–11–000 and RM12–11–
001; Order No. 790]
Revisions to Auxiliary Installations,
Replacement Facilities, and Siting and
Maintenance Regulations
Federal Energy Regulatory
Commission, DOE.
ACTION: Final rule.
AGENCY:
The Federal Energy
Regulatory Commission (Commission) is
issuing this Final Rule to amend its
regulations to clarify that auxiliary
installations added to existing or
proposed interstate transmission
facilities under the Commission’s
SUMMARY:
regulations must be located within the
authorized right-of-way or facility site
for the existing or proposed facilities
and use only the same temporary work
space that was or will be used to
construct the existing or proposed
facilities; and to codify the common
industry practice of notifying
landowners prior to coming onto their
property to install auxiliary or
replacement facilities, certain
replacements, or conduct maintenance
activities.
DATES:
This rule is effective February 3,
2014.
FOR FURTHER INFORMATION CONTACT:
Gordon Wagner, Office of the General
Counsel, Federal Energy Regulatory
Commission, 888 First Street NE.,
Washington, DC 20426 (202) 502–
8947, gordon.wagner@ferc.gov.
Katherine Liberty, Office of the General
Counsel, Federal Energy Regulatory
Commission, 888 First Street NE.,
Washington, DC 20426 (202) 502–
6491, katherine.liberty@ferc.gov.
Douglas Sipe, Office of Energy Projects,
Federal Energy Regulatory
Commission, 888 First Street NE.,
Washington, DC 20426 (202) 502–
8837, douglas.sipe@ferc.gov.
Howard Wheeler, Office of Energy
Projects, Federal Energy Regulatory
Commission, 888 First Street NE.,
Washington, DC 20426 (202) 502–
8688, howard.wheeler@ferc.gov.
SUPPLEMENTARY INFORMATION:
145 FERC ¶ 61,154
United States of America
Federal Energy Regulatory Commission
Revisions to Auxiliary Installations,
Replacement Facilities, and Siting and
Maintenance Regulations
Docket Nos. RM12–11–000; RM12–11–
001
Order No. 790
Final Rule
TABLE OF CONTENTS
wreier-aviles on DSK5TPTVN1PROD with RULES
Paragraph Nos.
I. Background .................................................................................................................................................................................
A. Request for Clarification of Section 2.55(a) of the Commission’s Regulations ................................................................
B. Notice of Proposed Rulemaking (NOPR) ..........................................................................................................................
II. Discussion .................................................................................................................................................................................
A. Section 2.55(a) Auxiliary Facilities .....................................................................................................................................
1. Commission Jurisdiction .............................................................................................................................................
2. Section 2.55 Siting and Construction Limitations .......................................................................................................
3. Environmental Issues ..................................................................................................................................................
4. Compliance with Executive Orders .............................................................................................................................
5. Section 2.55 Authorization and Part 157, Subpart F, Blanket Authorization .............................................................
6. ‘‘Grandfathering’’ Existing Section 2.55(a) Installations .............................................................................................
7. Burden of Section 2.55’s Right-of-Way Requirement .................................................................................................
B. Landowner Notification ......................................................................................................................................................
1. Jurisdictional Basis and Need for Landowner Notification .........................................................................................
VerDate Mar<15>2010
13:12 Dec 03, 2013
Jkt 232001
PO 00000
Frm 00004
Fmt 4700
Sfmt 4700
E:\FR\FM\04DER1.SGM
04DER1
2
8
9
12
12
13
17
40
43
45
49
51
54
58
Federal Register / Vol. 78, No. 233 / Wednesday, December 4, 2013 / Rules and Regulations
72795
TABLE OF CONTENTS—Continued
Paragraph Nos.
2. Exceptions to Landowner Notification Requirements .................................................................................................
3. Part 157 Landowner Notification Exemption for Replacement Projects ....................................................................
4. Requirement that Notification Inform Landowners of the Availability of the Commission’s Dispute Resolution Division ..............................................................................................................................................................................
5. Landowner Notification for Maintenance Activities .....................................................................................................
6. Burden Resulting from Notification Requirement .......................................................................................................
III. Information Collection Statement .............................................................................................................................................
IV. Environmental Analysis ............................................................................................................................................................
V. Regulatory Flexibility Act ...........................................................................................................................................................
VI. Document Availability ...............................................................................................................................................................
VII. Effective Date and Congressional Notification .......................................................................................................................
145 FERC ¶ 61,154
United States of America
Federal Energy Regulatory Commission
Before Commissioners: Jon Wellinghoff,
Chairman; Philip D. Moeller, John R.
Norris, Cheryl A. LaFleur, and Tony Clark.
Revisions to Auxiliary Installations,
Replacement Facilities, and Siting and
Maintenance Regulations
Docket Nos. RM11–12–000; RM11–12–
001
Order No. 790
Final Rule
wreier-aviles on DSK5TPTVN1PROD with RULES
(Issued November 22, 2013)
1. The Federal Energy Regulatory
Commission (Commission) is issuing
this Final Rule to amend its regulations
to (1) clarify that auxiliary installations
added to existing or proposed interstate
transmission facilities under section
2.55 of the regulations 1 must be located
within the authorized right-of-way or
facility site for the existing or proposed
facilities and use only the same
temporary work space that was or will
be used to construct the existing or
proposed facilities; and (2) codify the
common industry practice of notifying
landowners prior to coming onto their
property to install auxiliary or
replacement facilities under section
2.55; certain replacements under Part
157, Subpart F; or conduct maintenance
activities under section 380.15.
I. Background
2. Section 7(c)(1)(A) of the Natural
Gas Act (NGA) requires a natural gas
company to have certificate
authorization for the ‘‘construction or
extension of any facilities.’’ 2 To ‘‘avoid
the filing and consideration of
unnecessary applications for
certificates,’’ 3 i.e., to save the time and
1 18
CFR 2.55 (2013).
U.S.C. 717f(c)(1)(A) (2012).
3 Filing of Applications for Certificates of Public
Convenience and Necessity, Notice of Proposed
2 15
VerDate Mar<15>2010
13:12 Dec 03, 2013
Jkt 232001
expense that would otherwise be
expended by companies and the
Commission in undertaking a full,
formal NGA section 7 certificate
proceeding for every modification to an
authorized system, the Commission
added section 2.55 to its regulations.4
Rulemaking, NOPR, 13 FR 6253, at 6254 (October
23, 1948).
4 Section 2.55 went into effect in 1949. The
Commission subsequently considered expanding
section 2.55, but stated that although it ‘‘recognizes
the desirability of dealing with minor installations
on a practical basis,’’ it would not rely on section
2.55 because of ‘‘doubts that the Natural Gas Act
authorizes it to further expand its rule excluding
certain facilities from the certification
requirements’’; instead the Commission
‘‘recommended to the Congress that it be given such
authority’’ to ‘‘permit[] greater flexibility in its
procedures with respect to rate filings and
certification of natural-gas facilities.’’ Amending the
Commission’s General Rules and Regulations,
Order No. 185, 15 FPC 793, at p. 794 (1956). Such
authority was not forthcoming. In an effort to forego
issuing an individual certificate authorization in
advance of every single jurisdictional action, the
Commission provided for companies to file a single
certificate application under section 157.6 that
‘‘covered in general outline along the lines of a
budget estimate the proposed routine construction
intended to be undertaken by it during the current
or ensuing fiscal year,’’ describing the facilities,
costs, capacity, purpose, construction schedule,
customers affected, effects on gas supply, rates,
service, etc. Id. The Commission added section 2.58
to its regulations for these ‘‘budget-type’’ certificate
applications, see Gas Purchase Facilities—BudgetType Certificate Applications, Order No. 247, 27
FPC 1119 (1962). These regulations were removed
in 1982 when the blanket certificate program was
instituted, which offered companies a streamlined
means to obtain certificate authorization for a
limited set of routine and well understood facilities.
Interstate Pipeline Certificates for Routine
Transactions, Order No. 234, 47 FR 24254 (June 4,
1982), FERC Stats. & Regs., Regulations Preambles
1982–1985 ¶ 30,368 (1982), order on reh’g, Order
No. 234–A, 47 FR 38871 (September 3, 1982), FERC
Stats. & Regs., Regulations Preambles 1982–1985
¶ 30,389 (1982), amended by, Sales and
Transportation by Interstate Pipelines and
Distributors; Expansion of Categories of Activities
Authorized Under Blanket Certificate, Order No.
319, 48 FR 34875 (August 1, 1983), FERC Stats. &
Regs., Regulations Preambles 1982–1985 ¶ 30,479
(1983). The scope of the blanket-eligible facilities
has been expanded several times since 1982. See,
e.g., Revisions to the Blanket Certificate Regulations
and Clarification Regarding Rates, Order No. 686,
71 FR 63680 (October 31, 2006), FERC Stats. & Regs.
¶ 31,231 (2006), order on reh’g and clarification,
PO 00000
Frm 00005
Fmt 4700
Sfmt 4700
62
64
65
68
73
80
88
89
92
95
Section 2.55 establishes that for the
purposes of section 7(c), ‘‘the word
facilities as used therein shall be
interpreted to exclude’’ auxiliary and
replacement facilities.5 Thus, while an
auxiliary or replacement facility that
qualifies for purposes of section 2.55
remains subject to the Commission’s
NGA jurisdiction, it does not require an
individual, facility-specific section 7(c)
certificate authorization.
3. Facilities that qualify under section
2.55(a) must be ‘‘merely auxiliary or
appurtenant to an authorized or
proposed pipeline transmission system’’
and installed ‘‘only for the purpose of
obtaining more efficient or more
economical operation of the authorized
or proposed transmission facilities,’’
such as ‘‘[v]alves; drips; pig launchers/
receivers; yard and station piping;
cathodic protection equipment; gas
cleaning, cooling and dehydration
equipment; residual refining equipment;
water pumping, treatment and cooling
equipment; electrical and
communication equipment; and
buildings.’’ 6
Order No. 686–A, 72 FR 37431 (July 10, 2007),
FERC Stats. & Regs. ¶ 31,249 (2007), order on reh’g,
Order No. 686–B, 72 FR 54818 (September 27,
2007), FERC Stats. & Regs. ¶ 31,255 (2007).
5 18 CFR 2.55 (2013).
6 Id. 2.55(a)(1). But for the inclusion of pig
launchers/receivers in 1999, this list has remained
unaltered since section 2.55 was put in place in
1949. Note that if a pipeline company wants to
install any facilities specifically named in section
2.55(a)(1), but will not be installing them only for
the purpose of obtaining more efficient or more
economical operation of existing or proposed
interstate transmission facilities, then the company
cannot rely on section 2.55(a). See, e.g., Algonquin
Gas Transmission Company (Algonquin), 57 FERC
¶ 61,052 (1991), in which the Commission found
a company’s reliance on section 2.55(a) to install an
air stabilization unit was unwarranted because the
unit was necessary for the company to meet the
terms of its service agreements and comply with
safety requirements, and thus was not only for the
purpose of obtaining more efficient or more
economical operation of its transmission facilities.
See also West Texas Gas, Inc., 62 FERC ¶ 61,039
(1993), in which the Commission found section
2.55(a) did not apply to facilities constructed to
interconnect with another pipeline because the
E:\FR\FM\04DER1.SGM
Continued
04DER1
72796
Federal Register / Vol. 78, No. 233 / Wednesday, December 4, 2013 / Rules and Regulations
wreier-aviles on DSK5TPTVN1PROD with RULES
4. Originally, natural gas companies
were not required to notify the
Commission in advance of construction
under section 2.55(a). However, in 1999
the Commission determined that when
companies plan to add auxiliary
facilities to a project that has already
been authorized, but not yet completed,
or to a project for which authorization
is still pending, prior notification to the
Commission is needed in order to afford
the Commission the opportunity to
assess the auxiliary facilities’
environmental impacts, impacts which,
when combined with the impacts of the
construction and operation of the
facilities that will be augmented by the
auxiliary facilities, could potentially
alter the Commission’s conclusions
regarding the overall environmental
impact of the project.
5. As a result, Order No. 603 7 revised
section 2.55(a)(2) to require that if a
company plans to rely on section 2.55
to construct auxiliary facilities in
conjunction with: (1) A project for
which case-specific certificate authority
has already been received but which is
not yet in service, (2) a proposed project
for which a case-specific certificate
application is pending, or (3) facilities
that will be constructed subject to the
prior notice provisions of the Part 157,
Subpart F blanket certificate regulations,
then the company must provide a
description of the auxiliary facilities
and their location to the Commission at
least 30 days in advance of their
installation.8 In the case of auxiliary
facilities that will be constructed in
conjunction with a project for which an
purpose of the interconnect was to enable the
company to gain access to cheaper sources of gas,
and thus was not only for the purpose of obtaining
more efficient or more economical operation of its
transmission facilities and Natural Gas Pipeline
Company of America, 114 FERC ¶ 61,061, at n.4
(2006), in which the Commission rejected a
company’s effort to employ section 2.55(a) to
undertake well recompletions in a storage reservoir,
‘‘because the construction is designed to provide
incremental storage capacity rather than to maintain
the current level of service for existing customers,’’
and consequently required the company to obtain
case-specific authorization for the recompletions
(the company was permitted to rely on section
2.55(a) to make other modifications to its storage
facility, including adding station piping, header and
isolation valves with blowdowns, control valves,
gas coolers, a transformer, field inlet separation
facilities, and pigging equipment).
7 Revisions of Existing Regulations Under Part
157 and Related Sections of the Commission’s
Regulations Under Natural Gas Act, Order No. 603,
64 FR 26572, at 26574 (May 14, 1999), FERC Stats.
& Regs., Regulations Preambles July 1996–December
2000 ¶ 31,073 (1999), order on reh’g, Order No.
603–A, 64 FR 54522 (October 7, 1999), FERC Stats.
& Regs., Regulations Preambles July 1996–December
2000 ¶ 31,081 (1999), order on reh’g, Order No.
603–B, 65 FR 11,462 (March 3, 2000), FERC Stats.
& Regs., Regulations Preambles July 1996–December
2000 ¶ 31,094 (2000).
8 See 18 CFR 2.55(a)(2)(ii) (2013).
VerDate Mar<15>2010
13:12 Dec 03, 2013
Jkt 232001
application under Part 157, Subpart A
for case-specific certificate authority is
pending, the auxiliary facilities must be
described in the application’s
environmental report, as required by
section 380.12 of the Commission’s
regulations, or in a supplemental filing
while the application is pending.9 The
Commission explained these advance
notification requirements are necessary
in order to afford the Commission time
to include the environmental impacts of
the auxiliary facilities as part of its
environmental review of the project.10
6. Section 2.55(b) permits companies
to replace facilities that are or will soon
be physically deteriorated or obsolete,
so long as doing so will not result in a
reduction or abandonment of service
and the replacement facilities will have
a substantially equivalent designed
delivery capacity.11 Section 2.55(b)
replacement projects can go forward
without case-specific or blanket
certificate authorization. Further, the
30-day prior notice requirement in
section 2.55(b)(2) for more expensive
replacement projects only requires
notice to the Commission, not
landowners.12
9 See 18 CFR 2.55(a)(2)(iii) (2013). In the case of
auxiliary facilities to be constructed in conjunction
with a proposed project for which an application
for case-specific certificate authority is pending,
section 2.55(a)(2)(iii) requires that the applicant
describe the auxiliary facilities in the application’s
section 380.12 Resource Report 1—General Project
Description. Section 380.12(c)(1) requires the
applicant to describe and provide location maps for
‘‘all jurisdictional facilities, including all
aboveground facilities associated with the project
(such as: meter stations, pig launchers/receivers,
valves), to be constructed, modified, abandoned,
replaced, or removed, including related
construction and operational support activities and
areas such as maintenance bases, staging areas,
communications towers, power line, and new
access roads (roads to be built or modified).’’
Section 380.12(c)(2) requires that the applicant’s
Resource Report 1 identify and describe ‘‘all
nonjurisdictional facilities, including auxiliary
facilities, that will be built in association with the
project, including facilities to be built by other
companies.’’ If a company with a pending
application for case-specific certificate authority
determines that it will also need to construct
auxiliary facilities, section 2.55(a)(2)(iii) requires
that the applicant make a supplemental filing
describing the auxiliary facilities while the
application is pending.
10 Revisions to Regulations Governing NGPA
Section 311 Construction and the Replacement of
Facilities, Order No. 544, 57 FR 46,487 (October 9,
1992), FERC Stats. & Regs., Regulations Preambles
January 1991–June 1996 ¶ 30,951 (1992), order on
reh’g, Order No. 544–A, 58 FR 57730 (October 27,
1993), FERC Stats. & Regs., Regulations Preambles
January 1991–June 1996 ¶ 30,983 (1993).
11 18 CFR 2.55(b) (2013).
12 The requirement that a company give at least
30 days prior notice to the Commission before
commencing a replacement project applies if the
project will exceed the current cost limit for
projects automatically authorized under the Part
157 blanket certificate regulations. However, unlike
the blanket certificate regulations, section 2.55
PO 00000
Frm 00006
Fmt 4700
Sfmt 4700
7. In Order No. 603 the Commission
specified that all replacement facilities
must be constructed within the
previously authorized right-of-way or
facility site for the existing facilities and
use the same temporary work spaces
used for construction of the existing
facilities.13 The Commission reasoned
that section 2.55(b) replacements
‘‘should only involve basic maintenance
or repair to relatively minor facilities,’’
where it has been determined that no
significant impact to the environment
would occur.14 The Commission
suggested that in situations where a
company wants to use land outside
previously authorized areas, it may be
able to rely on its blanket certificate
authority rather than 2.55(b) to
undertake the project.15
A. Request for Clarification of Section
2.55(a) of the Commission’s Regulations
8. On April 2, 2012, the Interstate
Natural Gas Association of America
(INGAA) requested clarification
regarding the installation of auxiliary
facilities under section 2.55(a) of the
Commission’s regulations.16 INGAA
maintained that Commission staff had
stated in discussions with pipeline
representatives and in industry
meetings that companies undertaking
section 2.55(a) auxiliary installations to
augment existing facilities that are
already in service must stay within the
right-of-way or facility site for the
existing facilities and restrict
construction activities to previously
used work spaces. INGAA disagreed
with these constraints, arguing that
section 2.55(a) activities had not been
limited in this way in the past, and that
Commission staff’s position amounted
to rulemaking without the opportunity
for notice and comment, contrary to the
requirements of the Administrative
Procedure Act (APA).17 Pursuant to
section 385.207(a)(4) of the
Commission’s Rules of Practice and
Procedure, INGAA requested that the
Commission confirm INGAA’s view that
the right-of-way and work space
constraints stated by staff do not apply
to section 2.55(a) auxiliary installations.
places no cost limits on auxiliary installations or
replacement projects that qualify under that section.
13 Order No. 603, 64 FR 26572 at 26574–76, FERC
Stats. & Regs. ¶ 31,073 and 18 CFR 2.55(b) (2013).
14 Order No. 603–A, 64 FR 54522 at 54524, FERC
Stats. & Regs. ¶ 31,081.
15 Order No. 603, 64 FR 26572 at 26580, FERC
Stats. & Regs. ¶ 31,073.
16 On May 2, 2012, MidAmerican Energy Pipeline
Group (which includes Kern River Gas
Transmission Company and Northern Natural Gas
Company) filed a motion to intervene and
comments in support of INGAA’s petition.
17 5 U.S.C. 553 (2012).
E:\FR\FM\04DER1.SGM
04DER1
Federal Register / Vol. 78, No. 233 / Wednesday, December 4, 2013 / Rules and Regulations
B. Notice of Proposed Rulemaking
(NOPR)
9. On December 20, 2012, the
Commission issued a NOPR proposing
to revise its regulations to clarify that,
as with replacement projects under
section 2.55(b), all auxiliary installation
projects must take place within a
company’s authorized right-of-way or
facility site and use only previously
approved work spaces. In addition, the
NOPR proposed to add a 10-day
landowner notification requirement for
section 2.55 auxiliary and replacement
facilities and for section 380.15
maintenance activities.18 Timely
comments on the NOPR were submitted
by INGAA; 19 Golden Triangle Storage,
Inc. (Golden Triangle); MidAmerican
Energy Pipeline Group (MidAmerican
Energy); Southern Star Central Gas
Pipeline, Inc. (Southern Star); National
Fuel Supply Corporation and Empire
Pipeline, Inc. (National Fuel); and WBI
Energy Transmission, Inc. (WBI Energy).
Golden Triangle, MidAmerican Energy,
Southern Star, and WBI Energy support
INGAA’s comments.
10. The commentors object to the
Commission’s position that auxiliary
installations to enhance existing
facilities must be located within the
previously authorized areas for the
existing facilities, arguing the
Commission has not heretofore imposed
such a limitation on the siting or
construction of auxiliary facilities.
11. The commentors also oppose the
NOPR’s proposed new requirement that
companies give prior notice to affected
wreier-aviles on DSK5TPTVN1PROD with RULES
18 Revisions
to Auxiliary Installations,
Replacement Facilities, and Siting and
Maintenance Regulations, NOPR, 78 FR 679, 683
(January 4, 2013), FERC Stats. & Regs. ¶ 32,696
(2012) (cross-referenced at 141 FERC ¶ 61,228
(2012)). While section 380.15 covers siting,
construction, and maintenance, our existing
regulations already have notification requirements
in place applicable to siting and construction;
consequently, the additional prior notice
requirement described in the new section 380.15(c)
will apply exclusively to maintenance activities.
19 On January 22, 2013, INGAA made a filing
styled as a request for rehearing of the NOPR, and
on March 5, 2013, it filed comments on the NOPR.
INGAA argues the NOPR functioned as a Final Rule
by giving immediate effect to a change in the
regulations without providing affected entities
notice and an opportunity to comment. We do not
believe the NOPR’s clarification concerning section
2.55(a) effected any change; rather, it articulated
existing, long-standing constraints and obligations
with respect to auxiliary installations. Because the
NOPR does not constitute an instant Final Rule, we
find no cause to consider requests for rehearing of
the NOPR. Nevertheless, we will accept INGAA’s
request for rehearing and treat it as comments in
response to the NOPR. Thus, regardless of the
distinction between INGAA’s and the Commission’s
characterization of the NOPR, the concerns INGAA
raises in both of its submissions will be addressed
herein. We will identify INGAA’s self-styled request
for rehearing as January 2013 Comments and its
subsequent submission as March 2013 Comments.
VerDate Mar<15>2010
13:12 Dec 03, 2013
Jkt 232001
landowners before commencing
construction of auxiliary or replacement
facilities under section 2.55 of the
regulations or maintenance activities
under section 380.15 of the regulations.
Although the commentors do not
dispute the Commission’s position in
the NOPR that it is appropriate to give
landowners prior notice to the extent
practicable in order to minimize
inconvenience to landowners, the
commentors contend the proposed
notice procedures described in the
NOPR (1) are unnecessary, noting that
some companies already comply with
the spirit of this stipulation, and (2) are
impractical, particularly with respect to
urgent or unanticipated maintenance
activities.
II. Discussion
A. Section 2.55(a) Auxiliary Facilities
12. In this Final Rule, the Commission
revises its regulations, as proposed in
the NOPR, to clarify that all section
2.55(a) auxiliary installations added to
existing or proposed interstate
transmission facilities must be located
within the authorized right-of-way or
facility site for the existing or proposed
facilities and use only the same
temporary work space that was or will
be used to construct the existing or
proposed facilities.
1. Commission Jurisdiction
13. INGAA argues that section 2.55(a)
can be distinguished from section
2.55(b) on the grounds that auxiliary
facilities are not needed to provide
certificated services, and therefore are
not jurisdictional, while replacement
facilities are essential to provide
certificated services, and therefore are
jurisdictional. We disagree. Although
section 2.55 states that ‘‘for purposes of
section 7(c) of the Natural Gas Act, as
amended, the word facilities as used
therein shall be interpreted to exclude’’
auxiliary and replacement facilities,20
the Commission’s choice of wording in
drafting this section cannot change the
fact that section 2.55(a) auxiliary
facilities and section 2.55(b)
replacement facilities nevertheless are
jurisdictional facilities for purposes of
section 7 of the NGA. It went without
saying in 1949, and has largely gone
without saying since, that all section
2.55 facilities are subject to the
Commission’s jurisdiction. This is
obvious with respect to replacements,
since the new facilities step into the
shoes of the aging facilities they
20 Hence the title of section 2.55, Definition of
terms used in section 7(c), and the placement of
section 2.55 in Part 2, General Policy and
Interpretations.
PO 00000
Frm 00007
Fmt 4700
Sfmt 4700
72797
replicate, and so assume the replaced
facilities’ jurisdictional status. Section
2.55(a) auxiliary installations are also
jurisdictional, comprising that category
of facilities that enable companies to
operate existing or proposed
jurisdictional facilities more efficiently
or economically. All section 2.55
facilities are integrated into a larger
interstate transmission system and serve
no function other than to enable that
system to perform its jurisdictional
functions more efficiently or
economically; just as the larger system
is jurisdictional, the component parts of
that system, including auxiliary
facilities installed pursuant to section
2.55, are jurisdictional as well.21
14. INGAA states that the NGA
mandates that any jurisdictional facility
must be certificated. We concur. As we
have stated: ‘‘Section 2.55 of the
Commission’s regulations serves, in
effect, as standing authorization for
pipelines to perform periodic
maintenance and routine replacement’’
in order to ‘‘permit pipelines to
undertake limited construction projects
without waiting for NGA section 7(c)
case specific certificate
authorization.’’ 22 In other words,
section 2.55 grants automatic certificate
authorization for a limited class of
facilities.
15. To qualify under section 2.55(a),
facilities must serve ‘‘only for the
purpose of obtaining more efficient
operation or more economical operation
of the authorized or proposed
21 If facilities are installed in reliance on section
2.55, but do not meet the criteria of this section,
then they are jurisdictional facilities installed
without the requisite Commission certificate
authorization. For example, in Algonquin, after
finding facilities installed under color of section
2.55(a) did not qualify under that section, we
directed the company to show cause ‘‘why it did
not violate and is not violating section 7(c) of the
Natural Gas Act by constructing and operating
[facilities] without obtaining a certificate from the
Commission.’’ 57 FERC ¶ 61,052, at 61,205–06. The
company subsequently obtained case-specific
certificate authorization for the facilities at issue in
Boston Gas Company, 70 FERC ¶ 61,122, Ordering
Paragraph (F) (1995).
22 Emergency Reconstruction of Interstate Natural
Gas Facilities Under the Natural Gas Act, Notice of
Proposed Rulemaking, 68 FR 4120 (January 28,
2003), FERC Stats. & Regs. ¶ 32,567, at 34,679–80
(2003). In the interest of administrative and
industrial efficiency, we have dismissed requests
for case-specific section 7 certificate authorization
for facilities that qualified for this ‘‘standing
authorization’’ provided by section 2.55. For
example, in Columbia Gas Transmission
Corporation, 68 FERC ¶ 61,156, at 61,743 (1994),
we dismissed a request for case-specific section 7
certificate authorization to install a pigging and a
methanol injection system after finding that the
proposed facilities would serve only for the purpose
of obtaining more efficient or more economical
operation of an authorized transmission system,
and thus qualified as auxiliary facilities that could
and should be installed under section 2.55(a).
E:\FR\FM\04DER1.SGM
04DER1
72798
Federal Register / Vol. 78, No. 233 / Wednesday, December 4, 2013 / Rules and Regulations
transmission facilities’’ (emphasis
added).23 Therefore, we have always
assumed that section 2.55(a) would
necessarily be confined to projects small
enough and inconsequential enough
that their environmental and economic
impacts would not merit the close
scrutiny provided by (and time and
expense consumed by) case-specific
NGA section 7 review.24 Auxiliary
facilities installed in reliance on section
2.55(a) will be added either to existing
interstate transmission facilities that
were subject to environmental review
prior to construction or to a proposed
project, in which case the applicant
must identify in its certificate
application the auxiliary facilities it
plans to install in conjunction with the
project, so that the auxiliary facilities
will be included in the review of the
project’s environmental impacts.25 In
the case of section 2.55(b) replacement
facilities, an environmental review was
performed prior to construction of the
existing facilities to be replaced,26 and
the replacement facilities must be in the
same right-of-way and be substantially
equivalent in design capacity to the
existing facilities.27
23 Supra
n.6.
sentiment in Order No. 603–A, 64 FR
54522 at 54524, FERC Stats. & Regs. ¶ 31,081, that
replacements ‘‘should only involve basic
maintenance or repair to relatively minor facilities
where the Commission has determined that no
significant impact to the environment will occur’’
is applicable as well to auxiliary installations.
25 As discussed above, if a company plans to rely
on section 2.55(a) to install auxiliary facilities in
conjunction with a project under its Part 157
blanket construction certificate that it is subject to
prior notice, the company must give the
Commission notice of the type and planned
location of auxiliary facilities at least 30 days prior
to installation. See 18 CFR 2.55(a)(2)(ii) (2013).
26 In the case of existing facilities constructed
pursuant to blanket certificate authority, the
facilities’ construction was subject to the blanket
program’s section 157.206(b) environmental
compliance provisions.
27 For example, if a natural gas company wants
to replace a deteriorated section of 12-inch-diameter
pipe with 24-inch-diameter pipe, it generally
cannot rely on section 2.55(b) to undertake such
work, as the use of larger pipe could require larger
equipment and greater ground disturbance and thus
raise environmental issues that were not considered
when the12-inch-diameter pipeline was authorized.
In addition, while the replacement of deteriorated
facilities is necessary to maintain existing service
levels, section 2.55 does not provide the
opportunity for a company’s customers to raise
issues regarding the replacement project’s cost.
Thus, limiting replacement activities under section
2.55(b) to the construction of facilities that will be
substantially equivalent in design capacity to the
existing facilities is appropriate. If a company
believes that there is a need for the replacement
facilities to have significantly greater capacity, it
can undertake the replacement project under its
Part 157, Subpart F blanket construction certificate
program, subject to the regulations’ cost limits and
environmental conditions. If the replacement
project will exceed the blanket certificate cost limits
or the company cannot satisfy the blanket certificate
wreier-aviles on DSK5TPTVN1PROD with RULES
24 The
VerDate Mar<15>2010
13:12 Dec 03, 2013
Jkt 232001
16. Since the wording of section 2.55
of the regulations cannot work to
exclude auxiliary and replacement
facilities from the scope of our
jurisdiction under NGA section 7,
section 2.55 effectively provides not an
NGA-exemption, but a type of ‘‘blanket’’
certificate authority, so that a company
does not need to seek additional,
specific certificate authority to add
minor auxiliary facilities to its
previously certificated facilities or to
replace its previously certificated
facilities. Section 2.55 provides pregranted or automatic certificate
authorization to a specific, limited set of
facilities, and does so to avoid triggering
an unnecessary level of review for
certain minor modifications to an
existing or pending interstate
transmission system. Section 2.55 is
both a precursor and complement to our
Part 157 blanket certificate program. By
providing non-case specific certificate
authorization for limited classes of
facilities, the section 2.55 and blanket
certificate regulations permit companies
to satisfy the requirements of section
7(c) without having to apply for
individual case-specific certificates for
each and every modification to their
systems.
2. Section 2.55 Siting and
Construction Limitations
17. In 1994, we first had cause to
clarify the parameters of section 2.55, in
response to a request to increase
operating pressures and make other
changes to a pipeline system in Arkla
Energy Resources Company (Arkla).28 In
reviewing the existing facilities, it came
to light that Arkla had undertaken
several years before, in reliance on
section 2.55(b), to replace 91 miles of
old 18-inch-diameter pipe on a segment
of its system by abandoning it in place
and installing new 20-inch-diameter
pipe along a parallel path, which had
required widening the existing right-ofregulations’ environmental conditions, the
company can file an application for case-specific
certificate authority and initiate a proceeding in
which its customers and other parties can raise any
concerns. Note that as discussed in the NOPR, to
account for subsequent modifications having been
made to original facilities—in particular blanket
certificate projects that in adding to or altering
original facilities establish new permanent right-ofway and new temporary work space—we will revise
the section 2.55(b)(1)(ii) requirement that
replacements must be confined to areas authorized
for the ‘‘original facility’’ to allow for replacements
within areas authorized for the ‘‘existing facility.’’
28 67 FERC ¶ 61,173 (1994), order on reh’g,
NorAm Gas Transmission Company, 70 FERC ¶
61,030 (1995) (Arkla/NorAm). Arkla was in the
process of changing its name to NorAm at the time
the Commission issued its order finding that Arkla’s
replacement project did not qualify to go forward
under section 2.55(b). Thus, Arkla sought rehearing
under its new name.
PO 00000
Frm 00008
Fmt 4700
Sfmt 4700
way along portions of the route by an
additional 25 feet. We acknowledged
that (1) section 2.55(b) did not ‘‘specify
whether replacement facilities must be
constructed in the existing right-ofway,’’ and that (2) there was no case law
that ‘‘directly addressed this issue.’’ 29
However, we explained that
construction outside the right-of-way
that was studied and authorized for the
existing facilities potentially could have
environmental impacts that had not
been included in our environmental
review of the facilities being replaced.30
Thus, we clarified that:
[S]ection 2.55(b) means that replacement
facilities must be constructed within the
existing right-of-way. The reason is simple.
The authority to replace a facility and to
establish a right-of-way should be limited by
the terms and locations delineated in the
original construction certificate. Thus, a
certificate holder that later establishes a new
right-of-way for purposes of replacement
engages in an unauthorized activity which is
outside the parameters of the original
certificate order.31
18. We subsequently codified this
Arkla/NorAm clarification in Order No.
603 by amending section 2.55(b) to add
the phrase ‘‘will be located in the same
right-of-way or on the same site as the
facilities being replaced, and will be
constructed using the temporary work
space used to construct the original
29 67
FERC ¶ 61,173 at 61,516.
30 Id.
31 Id. As we noted in Arkla/NorAm, at the time
replacement activities limited to the existing rightof-way were categorically excluded by section
380.4(24) based on the assumption that impacts on
the environment will be insignificant if
construction activities to replace facilities are
limited to work within a pipeline’s existing
compressor station yard or right-of-way. Following
Arkla/NorAm, we concluded that even if
construction activities will be confined to the
existing right-of-way, there may be the need for
further environmental review if a replacement
project involves the construction of extensive
facilities, or there have been changes in land use
over time in the vicinity of the existing facilities (for
example, the existing facilities may have been
constructed in an area that was rural in nature at
the time but is now densely populated), or the
pipeline company’s replacement project may be
associated with the construction of other, nonjurisdictional facilities that could also have
environmental impacts. We rectified the situation
in Order No. 544, explaining that because we have
‘‘a responsibility under NEPA to review
replacement activities that pose potentially serious,
adverse environmental impact . . . we need to be
informed of such activities before they occur.’’
Order No. 544, 57 FR 46487, at 46491 (October 9,
1992); FERC Stats. & Regs. ¶ 30,951, at 30,686–87
(1992). Thus, while most replacement projects
involve minor facilities and no potential for
significant environmental impacts, we amended
section 2.55(b) to require that companies notify us
at least 30 days prior to commencing replacement
projects so that there is time for staff to assess
whether the project needs to be delayed in order to
conduct further environmental review.
E:\FR\FM\04DER1.SGM
04DER1
Federal Register / Vol. 78, No. 233 / Wednesday, December 4, 2013 / Rules and Regulations
wreier-aviles on DSK5TPTVN1PROD with RULES
facility.’’ 32 In this rulemaking
proceeding, we are clarifying that this
same right-of-way/work space limitation
is equally applicable to auxiliary
installations under section 2.55(a).
Rather than provide clarification in a
case-specific proceeding, as the
Commission did in Arkla/NorAm, and
then revise the regulation in a
subsequent rulemaking proceeding, here
we conflate clarification-to-codification
for section 2.55(a) into this single
proceeding.
19. As in Arkla/NorAm, construction
outside the right-of-way could have
environmental impacts that were not
included in our environmental review
of the existing facilities. In such
circumstances, we could not fulfill our
NEPA responsibilities if we were to
allow companies to continue acquiring
additional rights-of-way and work
spaces to install auxiliary facilities
under color of section 2.55(a) in areas
not included in the environmental
reviews for existing and proposed
transmission facilities. We must ensure
that environmental reviews are
32 Order No. 603, 64 FR 26572 (May 14, 1999),
FERC Stats. & Regs. ¶ 31,073 (1999). INGAA asserts
the NOPR in this proceeding erroneously stated that
the Commission did not address section 2.55(a)
auxiliary facilities in Order No. 603 when it revised
section 2.55(b) to limit replacement projects to the
originally authorized rights-of-way and work spaces
for the existing facilities. While, as noted above,
Order No. 603 did indeed address section 2.55(a)
auxiliary facilities, specifically adding the
notification requirements of section 2.55(a)(2),
Order No. 603 did not address the right-of-way
requirements relating to the installation of auxiliary
facilities because the Commission assumed that
there would be no need for gas companies to go
outside previously authorized or proposed rights-ofway and work spaces in order to install minor
facilities that, as specified in section 2.55(a), are
‘‘merely auxiliary or appurtenant’’ to and ‘‘only for
the purpose of obtaining more efficient or more
economical operation of the authorized or proposed
transmission facilities.’’ We explained in the NOPR
in this proceeding that Order No. 603, as it
pertained to spatial limitations on the construction
of facilities, dealt specifically with replacement
facilities, and therefore only discussed the rationale
for requiring section 2.55(b) replacement facilities
to be located within an existing right-of-way. We
also explained that no party raised any issue in the
Order No. 603 rulemaking proceeding regarding
spatial limitations on the installation of auxiliary
facilities under section 2.55(a), and therefore we
saw no need in Order No. 603 to discuss whether
the construction and location of auxiliary
installations to enhance existing facilities must fall
within the same footprint as the existing facilities.
NOPR, FERC Stats. & Regs. ¶ 32,696 at P 15. The
NOPR also pointed out that nothing in Order No.
603 evinced an intent to permit auxiliary facilities
or auxiliary installation activities outside of
authorized rights-of-way and work spaces. Id. Thus,
although we accept that the NOPR could have
provided a more precise summary of Order No. 603,
we reject INGAA’s claim that the NOPR
misrepresented Order No. 603, particularly since
the NOPR describes concerns discussed in Order
No. 603 with respect to auxiliary facilities, and
recites the resulting revisions made to section
2.55(a). Id. P 4.
VerDate Mar<15>2010
13:12 Dec 03, 2013
Jkt 232001
performed and appropriate mitigation
measures identified, and this NEPA
obligation extends to additional areas
landowners may cede to gas companies
for jurisdictional activities or facilities.
While the environmental review
conducted by the Commission in a
certificate proceeding encompasses a
corridor wider than the right-of-way and
temporary work spaces eventually
authorized, land usage and other
circumstances can change over time,
particularly in areas in which no
jurisdictional facilities are located, and
the Commission’s findings based on its
environmental review in a past
certificate proceeding may no longer be
valid for the entire corridor originally
studied. This makes it reasonable and
necessary to confine all auxiliary
facilities and construction activities
under section 2.55 to Commissionauthorized rights-of-way and work
spaces.
20. INGAA states that ‘‘[t]he
Commission has not been confronted
with issues resulting from auxiliary
installations outside an existing right-ofway similar to the issues that arose in
Arkla/NorAm from replacement
facilities.’’ 33 We acknowledge that we
are not aware of any section 2.55(a)
auxiliary activities outside the
authorized right-of-way approaching the
scale of the section 2.55(b) replacement
activities outside the right-of-way that
came to light during the Arkla/NorAm
proceeding.34 Nevertheless, the issues
raised for sections 2.55(a) and (b)
activities are the same.35 We covered
these issues in the NOPR, identifying
our principle concern as the absence of
any review of the environmental
impacts of activities outside of
authorized areas.
21. INGAA emphasizes that ‘‘cathodic
protection equipment,’’ ‘‘electrical and
communication equipment,’’ ‘‘pig
launcher/receivers,’’ and ‘‘buildings’’
are listed specifically in section 2.55 as
examples of auxiliary installations, and
contends these types of facilities
typically extend beyond a pipeline’s
right-of-way and/or require additional
work space to install.36 We do not find
33 INGAA’s
January 2013 Comments at p. 15.
had made numerous egressions from the
existing right-of-way and acquired significant
additional land rights without the Commission’s
knowledge in order to widen the existing right-ofway by 25 feet along significant portions of the 91
miles of pipeline that was replaced. Arkla had
needed the wider right-of-way in order to use
larger-diameter replacement pipe that it laid
alongside the old pipe that was abandoned in place.
35 See Arkla 67 FERC ¶ 61,173 at 61,517–18.
36 See INGAA’s January 2013 Comments at p. 31.
In several instances, commentors describe
contemporary cathodic protection components as
often being located outside an established right-of34 Arkla
PO 00000
Frm 00009
Fmt 4700
Sfmt 4700
72799
these examples sufficient to preclude
our action here. While we understand
that the installation of any particular
one of the types of facilities named in
section 2.55(a)(1) may require additional
right-of-way or work space, if this is the
case, then that particular facility could
not be installed pursuant to section
2.55(a). There are any number of
cathodic protection equipment,
electrical and communication
equipment, pig launcher/receivers, and
buildings that have been and can be
added without straying beyond the
confines of previously authorized areas,
and such facilities can be installed
pursuant to section 2.55(a). As
discussed below, section 2.55(a) will
continue to reduce the burden that
would be imposed if every natural gas
facility required case-specific certificate
authorization. Our decision to revise our
regulations to explicitly confine section
2.55(a) auxiliary facilities to
Commission-authorized rights-of-way
and work spaces is necessary to clarify
industry misinterpretations and to meet
our obligations under NEPA, as
discussed above, which cannot be
fulfilled if we allow companies to
construct auxiliary facilities in areas
outside of existing rights-of-way.
Further, while less convenient, most
auxiliary installation projects that do
not qualify under section 2.55(a)
because additional right-of-way or work
space is needed can be undertaken by
companies by relying on their Part 157
blanket construction certificates, subject
to those regulations’ environmental and
cost conditions. If a company cannot
satisfy the blanket certificate
regulations’ environmental and cost
conditions, it can file an application to
initiate a proceeding for case-specific
certificate authority, during which the
Commission will conduct an
way. However, in 1949 when ‘‘cathodic protection
equipment’’ was included in section 2.55(a),
cathodic protection commonly was provided by
passive systems that rely on the electrical potential
between the pipeline and anode. Such systems
require close spacing between the pipeline and
anode, and therefore would likely be placed within
the right-of-way. Thus, the inclusion of cathodic
protection equipment in the list of auxiliary
facilities that may qualify for purposes of section
2.55(a) reflected the fact that, at least in some
instances, additional right-of-way or work space is
not needed to install such equipment. The 1949
inclusion of ‘‘cathodic protection equipment’’ in
section 2.55(a) did not anticipate the impressed
current systems commonly used today, which
require that anodes be placed some distance (e.g.,
100 meters) from the pipeline, far beyond the
typical width of right-of-way needed or authorized
for laying pipe in the ground. Nonetheless, we note
that impressed current systems which use deep
well anode beds, can be set entirely within the
typical width of a right-of-way and can qualify
under section 2.55(a).
E:\FR\FM\04DER1.SGM
04DER1
72800
Federal Register / Vol. 78, No. 233 / Wednesday, December 4, 2013 / Rules and Regulations
wreier-aviles on DSK5TPTVN1PROD with RULES
environmental review and identify any
appropriate mitigation measures.37
22. Commenters raised specific
examples. INGAA, Southern Star, and
National Fuel observe that the list of
auxiliary installations includes
‘‘buildings,’’ and contend that generally
it is not feasible to construct buildings
within the previously authorized rightof-way containing existing pipeline
facilities. They assert that the inclusion
of ‘‘buildings’’ in section 2.55(a)
therefore is at odds with the NOPR’s
position that section 2.55(a) has never
authorized the construction of auxiliary
facilities on newly acquired right-ofway. Obviously, as Southern Star points
out, a gas company is not going to be
able to locate a large new headquarters
building for hundreds of personnel
within an existing right-of-way
authorized for a pipeline.38 However,
we do not agree that the inclusion of
‘‘buildings’’ in section 2.55(a) implicitly
validates companies’ reliance on section
2.55(a) to construct even small buildings
such as a tool shed on newly acquired
right-of-way.39 While section 2.55(a) can
be relied upon to construct housing for
compression, communication, electrical
and other equipment and facilities
needed to operate pipeline systems,
section 2.55(a) can only be relied upon
when such structures can be located
within existing or proposed rights-ofway or facilities’ site. Just as section
2.55(a) cannot be relied upon to install
auxiliary facilities if a company will
need to use a temporary work space that
was not studied during a prior
environmental review by the
Commission, section 2.55(a) also is not
intended for auxiliary installations
where a gas company’s plans include
other types of land use described by
INGAA and National Fuel, such as
construction of a new access road or the
temporary use of previously
undisturbed land to store pipe,
equipment, or machinery. While the
commentors point out that a company
generally does not need certificate
authority to acquire the land rights to
construct an access road or to store
37 For example, a company that needs a larger
right-of-way and more work space for pig launching
equipment will not be able to install the equipment
under its Part 157 blanket certificate if in the course
of performing required surveys an endangered
species is identified. In that case, the company may
still be able to go forward with the project if it files
an application for case-specific certificate authority,
depending on the results of the Commission’s
environmental review, including the required
formal consultation with the U.S. Fish and Wildlife
Service, and whether adequate mitigation measures
to protect the endangered species can be fashioned.
38 Southern Star’s Comments at p. 4.
39 We note that a new corporate headquarters
building is not a ‘‘natural gas facility’’ which
requires certification under the NGA.
VerDate Mar<15>2010
13:12 Dec 03, 2013
Jkt 232001
equipment and machinery, this makes
no difference in whether a project
qualifies under section 2.55(a).
23. Our goal is to ensure that the
authorization provided by section 2.55
does not inadvertently work to deprive
the Commission of the opportunity to
conduct an environmental review and
impose appropriate mitigation measures
in any situation where a natural gas
company’s construction activities may
have adverse environmental impacts.
Thus, even when all planned auxiliary
facilities can be located entirely within
an existing or proposed right-of-way, a
project does not qualify under section
2.55(a) if construction of the auxiliary
facilities will be undertaken in
conjunction with other activities, such
as building an access road or clearing
and leveling nearby areas to store
materials or equipment, that will occur
outside the existing or proposed rightof-way and use areas that have not been
environmentally reviewed in
connection with the past or pending
construction of other jurisdictional
facilities. If a pipeline company plans to
disturb any area in the process of
constructing auxiliary facilities that was
not or will not be subject to
environmental review, the company
must undertake the auxiliary
installation under the Part 157 blanket
certificate regulations or file an
application for case-specific certificate
authority so that the Commission has an
opportunity to conduct an
environmental study to consider related
activities in the vicinity of the auxiliary
installation activities, such as
construction of an access road or use of
land to store materials or machinery.
24. INGAA also comments on section
2.55(a)’s specification of ‘‘electrical and
communication equipment,’’ a category
that has expanded enormously since
1949. INGAA states that a
communications tower qualifies as
‘‘electrical and communication
equipment’’ and ‘‘typically involves
erecting a 40-foot-tall, three-leg tower
with associated microwave parabolic
dish antennas, . . . may include a selfcontained communications building and
backup generation,’’ and requires ‘‘a 40foot by 60-foot area that typically would
not fit within a pipeline’s existing rightof-way.’’ 40 While we recognize it is
unlikely the entire footprint of such a
communication tower can fit within the
confines of an existing authorized rightof-way or facility site, as noted above,
we find that this example is as an
exception to section 2.55(a) and not
characteristic of all electric and
communication equipment, some of
40 INGAA’s
PO 00000
January 2013 Comments at p. 31.
Frm 00010
Fmt 4700
Sfmt 4700
which can be installed within an
existing right-of-way. As stated above,
we cannot fulfill our NEPA
responsibilities if we allow section
2.55(a) projects to use right-of-way and
work space areas that have not been
reviewed for environmental purposes.
We have explained that if a structure is
needed to ensure a company’s
compliance with current regulations
(e.g., safety, security, or reliability
standards), but does not meet section
2.55 right-of-way/work space
requirements, then the company must
obtain blanket or case-specific
certificate authorization for the project.
25. Moreover, the fact that these types
of facilities are specifically listed in
section 2.55(a) does not mean that
companies can necessarily rely in all
instances on section 2.55(a) to install
them.
26. As discussed herein, when
companies plan to construct auxiliary
facilities in conjunction with projects
for which they need to file applications
under Part 157, Subpart A for casespecific certificate authority, section
2.55(a)(2)(iii) requires the companies to
describe in the case-specific certificate
proceedings any auxiliary facilities that
they plan to install under section 2.55(a)
and provide location maps.41 Thus, in a
case-specific certificate proceeding, a
company needs to include in the
proposed right-of-way and temporary
work spaces for which it seeks
certificate authorization any additional
areas it will need to install the planned
auxiliary facilities, notwithstanding that
it intends to rely on section 2.55(a) for
its authorization to construct the
auxiliary facilities.
27. In addition, if a company has
already requested or received a casespecific certificate, or is constructing
under its Part 157 blanket certificate
subject to those regulations’ prior notice
provisions, and decides prior to placing
those facilities in service that it also
wants to install auxiliary facilities, then
section 2.55(a)(2)(ii) requires that the
company give the Commission at least
30 days advance notice so that staff has
time to consider any additional
environmental impacts associated with
the auxiliary facilities.42 The fact that
section 2.55(a)(2)(ii) literally requires
advance notice only if the auxiliary
facilities are to be added to facilities that
are not yet in service does not mean that
companies can escape environmental
review when they want to add auxiliary
facilities to facilities that are already in
41 See
n.9.
18 CFR 2.55(a)(2)(ii) (2103). The advance
notification must include a description of the
auxiliary facilities and their planned location.
42 See
E:\FR\FM\04DER1.SGM
04DER1
Federal Register / Vol. 78, No. 233 / Wednesday, December 4, 2013 / Rules and Regulations
wreier-aviles on DSK5TPTVN1PROD with RULES
service. The installation of auxiliary
facilities within previously-established
rights-of-way and work spaces will be
within the scope of a completed
environmental review and conform to
the mitigation measures resulting from
that review, whereas the installation of
auxiliary facilities outside of established
rights-of-way or work spaces can impose
unstudied (and thus unmitigated)
environmental impacts, which is why
section 2.55(a) and (b) activities must be
restricted to rights-of-way, facility sites,
and work spaces that have been
reviewed and approved.
28. The commentors stress that in
Arkla/NorAm and Order No. 603, the
Commission focused its attention on
section 2.55(b) and infer from this that
the right-of-way/work space limitation
that was explicitly applied to
replacement facilities is implicitly
inapplicable to auxiliary installations.
This inference is incorrect. It was
companies’ overly expansive reading of
section 2.55(b), first noted and
addressed in Arkla/NorAm, which
prompted the Commission to revise
section 2.55(b) in Order No. 603 to limit
companies’ replacement project
activities under that section to the use
of existing rights-of-way and previously
disturbed temporary work spaces. We
were not aware, at that time, of
companies also relying on section
2.55(a) to go outside previously
authorized areas, in that case in order to
add auxiliary facilities to existing
facilities. Thus, when we issued Order
No. 603, we had no reason to lay out our
expectations regarding locational
requirements as they pertained to
auxiliary installations under section
2.55(a), even though we were clarifying
those requirements with respect to
replacement projects under section
2.55(b).43
29. However, over the last several
years, we began to receive anecdotal
indications that the industry might be
applying an unwarrantedly expansive
interpretation to section 2.55(a).44 In
43 As WBI Energy observes: ‘‘Section 2.55(b)
projects can involve replacing dozens or even
hundreds of miles of pipeline and transmission
service related facilities. Section 2.55(a) auxiliary
installations, on the other hand, are much smaller
projects with limited scope such as pig launchers,
valves and cathodic protection equipment.’’ WBI
Energy’s Comments at p. 5. As we have observed:
‘‘Auxiliary installations and taps generally involve
minor facilities; however, replacement of facilities
may involve the removal and replacement of
extensive mainline facilities.’’ Interim Revisions to
Regulations Governing Construction to Facilities
Pursuant to NGPA Section 311 and Replacement of
Facilities, Order No. 525, 55 FR 33011 at 33013,
FERC Stats. & Regs. ¶ 30,895 at 31,812 (1990).
44 Commission staff received questions from the
industry inquiring whether it was appropriate to
install certain facilities (including, but not limited
VerDate Mar<15>2010
13:12 Dec 03, 2013
Jkt 232001
response, Commission staff—in
conferences, meetings, and other public
and private settings—sought to remind
the industry that auxiliary installations,
like replacement projects, must not stray
outside of authorized rights-of-way and
work spaces. While INGAA states that
Commission staff’s consistent and
insistent stance in this matter prompted
its petition requesting that the
Commission disavow staff’s statements,
INGAA’s request for clarification also
serves to highlight how the industry is
improperly interpreting section 2.55(a)
to undertake construction of facilities
that do not qualify under that section
because they involve siting the facilities
and/or engaging in construction
activities outside of authorized areas.
30. When Arkla/NorAm clarified that
section 2.55(b) was restricted to
replacements within the originally
authorized right-of-way for the facilities
being replaced, companies complained
the Commission was upending longheld industry expectations and
imposing an impractical constraint.
Comments on the NOPR in this
proceeding regarding auxiliary projects
under section 2.55(a) recycle the
objections presented on rehearing in
Arkla/NorAm, namely: ‘‘the
Commission failed to articulate the
reason for its change in policy’’; ‘‘the
Commission’s rationale underpinning’’
its ‘‘clarification is inadequate and
inconsistent with the history and
purpose of section 2.55(b)’’; the
‘‘clarification is unduly burdensome
because it deprives pipelines of needed
flexibility when repairing mainline
facilities’’ and ‘‘that less burdensome
alternatives are available’’; ‘‘clarification
constituted an arbitrary and capricious
action because it will create significant
and unjustifiable regulatory burdens’’;
and the right-of-way specification
constituted a ‘‘rulemaking which failed
to satisfy the notice and comment
procedures of section 533 of the
Administrative Procedure Act.’’ 45
31. The discussion, rationale, and
result in the 1995 Arkla/NorAm
rehearing could serve as our response to
the comments on the NOPR. The
Commission’s orders in Arkla/NorAm
‘‘aimed at removing any possible
confusion within the industry
to, cathodic protection equipment, pig launchers,
communications equipment) outside of the
company’s authorized right-of-way using section
2.55 authority.
45 Arkla/NorAm, 70 FERC ¶ 61,030 at 61,099.
Later, when the Commission proposed to revise the
text of section 2.55(b) to incorporate the Arkla/
NorAm clarification, comments emphasized the
impracticality of corralling replacement
construction activities within the originally
authorized rights-of-way and workspaces.
PO 00000
Frm 00011
Fmt 4700
Sfmt 4700
72801
concerning section 2.55’’ 46 by
responding to the ‘‘mistaken belief ’’ 47
that section 2.55 permitted companies
to replace obsolete facilities with new
facilities outside rights-of-ways that
were authorized for the facilities being
replaced or to engage in any
construction activities outside the
existing right-of-way and previously
disturbed work spaces. The clarification
provided by the NOPR in this
proceeding was aimed at the same
mistaken belief on the part of some
industry members with respect to
section 2.55(a). Just as the Commission
explained in Arkla/NorAm that, despite
arguments to the contrary, it had ‘‘not
changed its interpretation of what
replacement facilities qualify’’ and can
be installed under section 2.55(b),48 the
clarification in the NOPR in this
proceeding did not reflect a change in
the Commission’s interpretation of what
auxiliary facilities can be installed
under section 2.55(a). Thus, we could
have issued an instant Final Rule to
codify our clarification of section 2.55(a)
without providing notice and
opportunity, just as the Commission has
modified section 2.55 several times in
the past without notice and comment
when such actions were interpretive in
nature.49
32. Until relatively recently, the
Commission had always assumed that
companies understood when they relied
on section 2.55(a) to add auxiliary
facilities to facilities already in service,
the new auxiliary facilities must be
attached or immediately adjacent to the
existing facilities and within the rightof-way authorized for the existing
facilities and no additional right-of-way
or work space could be acquired or used
in order to add the auxiliary facilities to
the existing facilities.50 As we did in
46 Id.,
at 61,100.
47 Id.
48 Id.
61,099–100.
Arkla/NorAm, the Commission noted
previous amendments to section 2.55 that were
treated as matters of interpretation, and as such
implemented absent notice or hearing. Arkla/
NorAm, 70 FERC ¶ 61,030 at 61,100 and n.10, citing
Order No. 220, 23 FPC 499 (1960) (including
delivery taps as qualifying facilities for purposes of
section 2.55); Order No. 241, 27 FPC 33 (1962)
(revising the description of qualifying replacements
for purposes of section 2.55); and Order No. 148–
A, 49 FPC 1046, 1047 (1973) (excluding delivery
points). Arkla/NorAm also cited, at n.11, American
Mining Congress v. Mine Safety & Health Admin.,
995 F.2d 1106, 1112 (D.C. Cir. 1993), which
describes traits of interpretive rules, to show these
modifications to section 2.55 constituted
interpretations that, consistent with the APA, did
not require notice or hearing.
50 See, e.g., Order No. 603–A, 64 FR 54522 at
54523, FERC Stats. & Regs. ¶ 31,081: ‘‘Traditionally,
Section 2.55 limited the installation of auxiliary
facilities to facilities installed on an existing
49 In
E:\FR\FM\04DER1.SGM
Continued
04DER1
72802
Federal Register / Vol. 78, No. 233 / Wednesday, December 4, 2013 / Rules and Regulations
wreier-aviles on DSK5TPTVN1PROD with RULES
Arkla/NorAm for section 2.55(b), we
apply ‘‘a common-sense reading’’ to
section 2.55(a) and reach the same
conclusions as we did with respect to
our prior clarification of section 2.55(b),
so that those auxiliary and replacement
activities that qualify for purposes of
section 2.55, and therefore require no
additional certificate authority, are
‘‘delineated by the parameters of the
certificate’’ 51 authorizing the
transmission facilities that will be made
more efficient or economic by adding
auxiliary facilities under section 2.55(a)
or be replaced under section 2.55(b).52
33. Similarly under this common
sense reading of section 2.55, we
conclude that ‘‘to the extent that
facilities are built outside the scope of
the certificate, such facilities are
unauthorized.’’ 53 Thus, if auxiliary
facilities are to be added to existing or
proposed interstate transmission
facilities, the auxiliary facilities will
qualify for purposes of section 2.55(a)
only if they will be located within the
same right-of-way as the transmission
facilities 54 and construction activities
will be limited to the temporary
workspaces authorized for construction
of the transmission facilities and
conform to the conditions of the
certificate authorizing construction of
the transmission facilities (e.g., all
required mitigation measures, such as
erosion control or revegetation
protocols, that applied to the casespecific certificate or Part 157 blanket
certificate authority under which the
transmission facilities were
constructed).55
transmission system.’’ This holds for all section
2.55 facilities (including delivery points and taps
during the period when they were covered under
section 2.55), which have always been additions to
or replacements of portions of a larger existing
system, and as such have always been integrated
into or substituted in place of jurisdictional
facilities.
51 70 FERC ¶ 61,030 at 61,100.
52 Id.
53 Id.
54 Notice of Proposed Rulemaking, 68 FR 4120,
FERC Stats. & Regs. ¶ 32,567 at 34,679. See also
Emergency Reconstruction of Interstate Natural Gas
Facilities Under the Natural Gas Act, Order No.
633, 68 FR 31596, at 31598–99 (May 28, 2003);
FERC Stats. & Regs. ¶ 31,144, at 30,399 (2003).
55 The bounds of a section 2.55 facility’s
authorization reflect the certificate conditions of the
transmission system it modifies. For example, in
Order No. 603–A, 64 FR 54522, FERC Stats. & Regs
¶ 31,081, at 30,921–22, the Commission was asked
to permit section 2.55(b) projects to use
‘‘Commission-approved rights-of-way unrelated to
the construction of facilities being replaced’’ on the
grounds that ‘‘any existing right-of-way that has
already been disturbed for pipeline construction,
has been reviewed’’ for environmental impacts. The
Commission rejected this request, reasoning that
‘‘the existing right-of-way that was used to
construct the original facilities should be
sufficient,’’ since replacements ‘‘should only
VerDate Mar<15>2010
13:12 Dec 03, 2013
Jkt 232001
34. INGAA continues to argue that
two Commission staff letters—one from
1984 and another from 1998—support
INGAA’s position that current
Commission staff has been
implementing a change in Commission
policy by telling companies that they
cannot rely on section 2.55(a) to
construct auxiliary facilities if they need
additional right-of-way or previously
undisturbed areas as work space. As
discussed in the NOPR, INGAA
describes the April 1998 letter signed by
Commission staff as accepting a
proposed section 2.55(a) installation of
cathodic protection equipment outside
the right-of-way for the existing pipeline
facilities.56 We note that in December
1997, Commission staff had issued a
letter addressing what appears to be the
same proposed cathodic protection
project. In this earlier letter, staff recited
the requisite section 2.55 criterion ‘‘that,
consistent with the Commission’s
previous determinations regarding 18
CFR § 2.55(b), facilities constructed
under section 2.55(a) must be placed
within the permanent right-of-way.’’ 57
Staff explained in the December 1997
letter that because a portion of the
project would be located ‘‘in a new
right-of-way . . . in agricultural soil
which was not previously disturbed by
the pipeline construction,’’ 58 the project
could not be installed under section
2.55(a); consequently, staff directed the
company to ‘‘file an application under
Section 7 of the Natural Gas Act for
authorization.’’ 59
35. Neither the April 1998 follow-up
letter cited by INGAA accepting the
cathodic protection installation under
section 2.55(a) nor anything else in the
record states where the new facilities
ultimately were located. INGAA
assumes that the new equipment was
installed in new right-of-way, since the
December 1997 letter describes the
ground beds as being outside the rightinvolve basic maintenance or repair to relatively
minor facilities where the Commission has
determined that no significant impact to the
environment will occur.’’ The Commission noted
that in most instances gas companies would be able
to ‘‘use their blanket certificate authority to perform
projects involving more extensive work that would
need additional workspace, including the use of
other unrelated rights-of-way,’’ since the blanket
procedures ‘‘would allow for the required
additional environmental scrutiny.’’
56 Letter signed by the Director of the
Commission’s Office of Pipeline Regulation, dated
April 3, 1998; FERC eLibrary Accession No.
19980408–0242.
57 Letter signed by the Director of the
Commission’s Office of Pipeline Regulations, dated
December 16, 1997, p. 1 (citing Arkla/NorAm and
Columbia Gas Transmission Corporation, 68 FERC
¶ 61,173 (1994), FERC eLibrary Accession No.
19971223–0120).
58 Id.
59 Id.
PO 00000
Frm 00012
Fmt 4700
Sfmt 4700
of-way. We believe it is as likely that
after receiving staff’s 1997 letter, the
company determined that it could locate
the ground beds within the same rightof-way containing the existing pipeline
facilities, in which case staff’s December
1997 letter and April 1998 letter are
consistent and correct; otherwise, as we
acknowledged in the NOPR, the April
1998 letter did not reflect Commission
policy correctly.60
36. The 1984 Commission staff letter
identified by INGAA stated that
proposed facilities to remove liquid
condensate and free water could qualify
as an auxiliary installation for purposes
of section 2.55(a) as they would increase
the efficiency and enhance the
flexibility of the existing interstate
pipeline system without altering the
capacity of the system.61 INGAA
emphasizes that staff’s letter reached
this determination, notwithstanding that
the letter’s description of the project
indicated that some of the proposed
facilities would be located outside the
existing right-of-way. We find no
indication that the location of the new
facilities was taken into account in the
one-page, two-paragraph staff letter
which focuses exclusively on whether
the new facilities would function, as the
regulation requires, ‘‘only for the
purpose of obtaining more efficient or
more economical operation.’’ The
order’s failure to recognize the site of
some the of proposed facilities as
outside of the existing right-of-way
appears to have been be an oversight
that led to a wrong result, since locating
any of the planned new auxiliary
facilities outside the existing right-ofshould have disqualified the project for
purposes of section 2.55(a).
37. At most, INGAA has identified
two instances where Commission policy
may not have been applied correctly.
Further, both examples cited by INGAA
were staff letters; neither was a
Commission order. INGAA cannot
plausibly argue that these two
questionable examples must be accepted
as representing a clear statement of
Commission policy, particularly when
INGAA acknowledges it filed its request
for clarification expressly because ‘‘[t]he
Staff of the Federal Energy Regulatory
Commission . . . has taken the position
in informal conferences with pipelines
and in industry meetings that Section
2.55(a) of the Commission’s regulations
only applies to auxiliary installations in
existing rights-of-way and where the
60 NOPR, FERC Stats. & Regs. ¶ 32,696 at P 11, n.
18 (cross-referenced at 141 FERC ¶ 61,228).
61 Trunkline Gas Company, Docket No. CP84–
394–000, letter order signed by the Director of the
Commission’s Office of Pipeline Regulation, dated
May 25, 1984.
E:\FR\FM\04DER1.SGM
04DER1
Federal Register / Vol. 78, No. 233 / Wednesday, December 4, 2013 / Rules and Regulations
wreier-aviles on DSK5TPTVN1PROD with RULES
original work space is used,’’ 62 and
because it strongly disagrees with
‘‘Commission Staff’s position . . . that
the same right-of-way and work space
requirements made expressly applicable
to the replacement of facilities under
Section 2.55(b) of the Commission’s
regulations are implied requirements of
Section 2.55(a).’’ 63 In any event,
regardless of whether some companies
have thought they had some reasonable
basis for expecting that construction
activities to add auxiliary facilities to
existing facilities can extend outside the
previously authorized areas for the
existing facilities,64 we cannot fulfill our
NEPA responsibilities if we allow
companies to continue acquiring
additional rights-of-way and work
spaces to install auxiliary facilities
under color of section 2.55(a) in areas
not included in the environmental
reviews for existing and proposed
transmission facilities. We must ensure
that environmental reviews are
performed and appropriate mitigation
measures identified, and this NEPA
obligation extends to additional areas
landowners may cede to gas companies
for jurisdictional activities or facilities.
38. INGAA and WBI Energy point to
the Commission’s document titled
Guidance on Repairs to Interstate
Natural Gas Pipelines Pursuant to FERC
Regulations (Guidance Document),
which states that ‘‘all replacement
facilities must be constructed within the
same right-of-way, compressor station,
or other aboveground facility site as the
facility being replaced,’’ but does not
make a similar statement about auxiliary
installations.65 INGAA maintains this
omission ‘‘reinforces the decisions’’
made by Commission staff in the abovediscussed 1997 and 1984 letters.
39. We do not share this assessment.
The Guidance Document’s summation
of section 2.55, while highlighting the
need for replacements to stay within
authorized boundaries, does not include
any discussion that would indicate
auxiliary installations are intended to be
exempt from this same constraint. The
62 INGAA’s April 2, 2012 Request for Clarification
at p. 1, Docket No. RM12–11–000 (footnote
omitted).
63 Id.
64 INGAA declares that ‘‘[f]or over six decades,
the interstate pipeline industry has considered
auxiliary installations beyond the right-of-way to be
acceptable.’’ INGAA’s January 2013 Comments at p.
36. Echoing objections raised in Arkla/NorAm and
Order No. 603, INGAA adds that our clarification
‘‘represents a sea change in how the industry will
address such installations, thereby raising costs,
limiting efficiencies, and threatening expedited
enhancement of pipeline integrity by making such
installations more difficult to effectuate.’’ Id. at 39.
65 See https://www.ferc.gov/industries/gas/geninfo/guidance.pdf, at p. 3 (2005). (An updated
Guidance Document was issued in August 2013).
VerDate Mar<15>2010
13:12 Dec 03, 2013
Jkt 232001
Guidance Document on repairs reflects
the Commission’s experience with
section 2.55 projects, which is that the
scale and impacts of section 2.55(b)
replacement projects (e.g., Arkla/
NorAm) can far exceed those of section
2.55(a) auxiliary installations. This is, as
explained above, why we saw a need to
spell out the right-of-way/work space
restriction for replacements, and why—
until recently—we had not recognized
that there apparently is a need to do the
same for auxiliary facilities.
3. Environmental Issues
40. INGAA contends the NOPR was
incorrect in suggesting that all
certificated gas facilities have
undergone an environmental review
prior to being constructed, because an
environmental review was not a part of
the Commission’s certificate
proceedings until after NEPA’s
promulgation in 1969. We acknowledge
that NEPA altered the methodology
employed by the Commission to
evaluate the environmental impacts of a
proposed project. For example, since
NEPA, the Commission’s orders
granting applications for construction
authorization generally have included a
separate section addressing the potential
environmental impacts of an applicant’s
proposed reasonable alternatives.66
However, the Commission has long
recognized that determining whether
proposed facilities are required by the
public convenience and necessity
requires that environmental
consequences be taken into account
(albeit in a far less methodical and
thorough manner), and, when
warranted, that constraints be imposed
on projects’ location, construction, and
operation. For example, while prior to
NEPA the Commission did not require
an applicant to search historical county
and state records to identify old burial
sites no longer clearly marked as we do
today, the Commission would not have
permitted an applicant to lay a pipeline
across a visible cemetery and any
approval for a pipeline to cross any
isolated graves would have been
conditioned on their appropriate
relocation.
41. As the Commission observed in
1990 in adopting the advance
notification requirement for more
extensive replacement projects under
section 2.55(b),67 when that section was
66 See Commission Regulations Implementing
NEPA, 18 CFR part 380 (2013).
67 As discussed above, the 30-day advance
notification requirement applies to a replacement
project under section 2.55(b) if project costs will
exceed the Part 157 blanket certificate regulations’
current cost limits for projects that qualify under
the those regulations’ automatic provision.
PO 00000
Frm 00013
Fmt 4700
Sfmt 4700
72803
promulgated in 1949 ‘‘there were fewer
pipeline construction projects and the
majority of those projects involved
relatively short lengths of small
diameter pipeline.’’ 68 The Commission
explained that the advance notification
requirement was needed because over
the years ‘‘an integrated and
sophisticated national pipeline
gridwork has developed’’; and
‘‘[w]hereas replacement of facilities
when § 2.55 was adopted could be
assumed to involve minor projects,
today, replacement of facilities could
involve hundreds of miles of large
diameter pipeline.’’ 69 The same
reasoning holds for auxiliary
installations, given the increase in the
number, scale, and potential impacts of
section 2.55 activities.
42. While our NOPR in this
proceeding clarified that section 2.55(a)
has always been limited to installations
in authorized areas that have been or
will be subject to environmental review,
the NOPR also served to provide an
opportunity for parties to convince us
that this limitation is not necessary. Not
only do INGAA’s comments not change
our view, they serve to reinforce our
belief that section 2.55 activities need to
be confined to areas included within the
existing right-of-way and previouslyused construction workspace by
pointing out that section 2.55 can be
relied upon to replace or add auxiliary
facilities to transmission systems that
were authorized prior to NEPA when
the Commission’s environmental review
would have been less rigorous and
might not have identified project
impacts that would come to light with
today’s greater scrutiny.
4. Compliance With Executive Orders
43. The commentors claim the NOPR
fails to follow Executive Orders
directing agencies to weigh the burden
68 Interim Revisions to Regulations Governing
Construction of Facilities Pursuant to NGPA Section
311 and Replacement of Facilities, Order No. 525–
A, 53 FERC ¶ 61,140, at 61,467 (1990).
69 Id. The Commission also explained in Order
No. 525–A that the advance notification
requirement was needed for more extensive
replacement projects under section 2.55(b) because
changes could have occurred since an existing
facility was put in place (e.g., the character of a
region shifting from rural to residential), stating
that:
[J]ust because an area was disturbed when the
pipeline was originally installed does not mean that
replacing the old pipe with a new pipe will not
potentially raise new environmental concerns. Such
an action must be assessed in light of current land
use, regulations, and concerns about erosion,
sediment control, impact on streams and soil,
threatened and endangered species and potential
PCB contamination.
E:\FR\FM\04DER1.SGM
04DER1
72804
Federal Register / Vol. 78, No. 233 / Wednesday, December 4, 2013 / Rules and Regulations
wreier-aviles on DSK5TPTVN1PROD with RULES
and benefit of regulations.70 They point
out that section 2.55 was intended to
avoid the burden of companies’ having
to obtain case-specific certificate
authorization for certain routine
activities, and argue the purportedly
new right-of-way/work space constraint
will preclude some installations of
auxiliary facilities under section 2.55(a),
and so compel companies to instead
submit more individual certificate
applications.
44. We concur with the commentors’
characterization of section 2.55: it was
put in place to, and continues to, reduce
the burden that the industry (and
Commission) would otherwise bear if
every minor modification to a natural
gas facility required case-specific
certificate authorization. Further, while
the Commission, as an independent
agency, is not subject to the
requirements of the cited Presidential
documents, the Commission has
directed staff to perform an internal
assessment of the effectiveness of our
regulations and is continually seeking to
streamline the regulations in order to
foster competitive markets, facilitate
enhanced competition, and avoid
imposing undue burdens on regulated
entities or unnecessary costs on those
entities or their customers.71 However,
the NOPR, by more fully describing the
types of activities that currently come
within the bounds of 2.55(a), does not
trigger any need for assessment of
burdens and benefits, because the
NOPR’s clarification regarding the scope
of section 2.55(a) does not alter any
aspect of the status quo. Where the
NOPR’s proposed new regulations
would impose an additional burden
(e.g., the landowner notification
requirements discussed below), then in
accord with applicable Executive
70 Commenters cite Executive Order No. 13,563,
Improving Regulation and Regulatory Review, 76 FR
3821 (January 21, 2011) (directing executive
agencies and requesting that independent
regulatory agencies such as the Commission ensure,
inter alia, that their regulations have benefits
justifying their costs and impose the least burden
possible); Executive Order No. 13,579, Regulation
and Independent Regulatory Agencies, 76 FR 41587
(July 14, 2011) (requesting that executive agencies,
including independent regulatory agencies such as
the Commission, retrospectively analyze their
regulations and that regulations found to be
outmoded, ineffective, insufficient, or excessively
burdensome be modified, streamlined, expanded, or
repealed); and Executive Order No. 13,211, Actions
Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use, 66 FR 28355
(May 22, 2001) (requiring agencies other than
independent regulatory agencies such as the
Commission to prepare Statements of Energy Effects
describing the effects of certain significant energy
actions on energy supply, distribution, or use).
71 See, e.g., Storage Reporting Requirements of
Interstate and Intrastate Natural Gas Companies,
Order No. 757, 77 FR 4220 (January 27, 2012), FERC
Stats. & Regs. ¶ 31,327, at PP 12–13 (2012).
VerDate Mar<15>2010
13:12 Dec 03, 2013
Jkt 232001
Orders, we explain the benefit we
anticipate these new regulations will
provide and quantify the burden we
anticipate compliance will impose.
5. Section 2.55 Authorization and Part
157, Subpart F, Blanket Authorization
45. Under our Part 157, Subpart F
blanket certificate regulations, as under
our section 2.55 regulations, a gas
company can construct and operate a
limited class of facilities without the
need to obtain separate certificate
authorizations for each individual
facility. INGAA, MidAmerican Energy,
and National Fuel point to section
157.202(b)(3) of our blanket certificate
regulations, which in designating the
types of facilities that may qualify for
blanket authorization, states: ‘‘‘Facility’
does not include the items described in
section 2.55.’’ 72 MidAmerican Energy is
apprehensive this could be interpreted
to mean that if an auxiliary facility does
not qualify under section 2.55(a)
because it does not meet the right-ofway/work space constraints, then it also
could not qualify as an eligible facility
under the blanket regulations because of
the section 157.202(b)(3) limitation,
thereby leaving a company with the
‘‘only option’’ of filing an application
for case-specific certificate
authorization.73
46. The Commission responded to a
similar concern in 1999 in the Order No.
603 proceeding that codified the Arkla/
NorAm clarification regarding
replacement projects under section
2.55(b) by amending that section to add
the phrase ‘‘will be located in the same
right-of-way or on the same site as the
facilities being replaced, and will be
constructed using the temporary work
space used to construct the original
facility.’’ 74 The Commission explained
that section 157.202(b)(3) only prevents
companies from relying on their Part
157 blanket certificates to construct
facilities if the facilities qualify under
section 2.55. As clarified by Order No.
603’s revision to section 2.55(b),
replacement projects are disqualified
under that section only if they will use
additional right-of-way or work space
than was used in constructing the
facilities being replaced or will result in
an incidental increase in capacity. Thus,
section 157.202(b)(3) prevents
companies from relying on their Part
157 certificates for replacement projects
that will not use additional right-of-way
72 18
CFR 157.202(b)(3)(2013).
Energy’s Comments at p. 11.
74 Order No. 603, 64 FR 26572, FERC Stats. &
Regs. ¶ 31,073.
73 MidAmerican
PO 00000
Frm 00014
Fmt 4700
Sfmt 4700
or work space and therefore qualify
under section 2.55.75
47. Both section 2.55 and the blanket
certificate program are intended to
provide a streamlined authorization
process to avoid the comparatively
greater time, cost, and effort that
accompany a case-specific section 7
certificate application.76 To this end, we
expect companies seeking to install,
maintain, replace, repair, or upgrade
facilities to look first to section 2.55,
and only if an activity is beyond the
scope of that section then to turn to
blanket certificate authority, and only if
an activity would exceed blanket
authority, then to file for case-specific
section 7 authorization.
48. INGAA and National Fuel note we
modified section 157.202(b)(2)(i) to
specify that replacements which do not
meet section 2.55(b) requirements may
be eligible for blanket authorization 77
and request we do the same for auxiliary
installations. We will do so (although
we believe this does not change the way
the regulations currently function) to
ensure clarity and consistency in the
application of the regulations.78
Accordingly, to explicitly (and
redundantly) specify that auxiliary
installations which do not meet section
2.55(a) requirements may be eligible for
blanket authorization, we will add the
following sentence at the end of section
157.202(b)(2)(i): ‘‘Eligible facility
includes auxiliary installations and
observation wells which do not qualify
under § 2.55(a) of this chapter because
75 Order No. 603, 64 FR 26572 at 26580, FERC
Stats. & Regs. ¶ 31,073.
76 While section 2.55 covers a more limited range
of facilities than the blanket program, it offers
lighter-handed regulatory oversight than the blanket
program.
77 Order No. 603 revised 157.202(b)(2)(i) to
specify that eligible facilities include ‘‘replacements
that do not qualify under section 2.55(b) of this
chapter because they will have an impact on
mainline capacity.’’ Order No. 603, 64 FR 26572 at
26579–80, FERC Stats. & Regs. ¶ 31,073.
78 We note that in instances where a pipeline
company needs to rely on its Part 157 certificate to
construct auxiliary or replacement facilities because
they do not satisfy the location or work space
limitations of section 2.55, the Part 157 blanket
certificate regulations impose no limitations on the
placement of the facilities. While the Commission
has indicated previously that it is contemplated that
replacement facilities constructed under blanket
authority would usually be located adjacent to, if
not within, an existing right-of-way, sections
157.202(b)(2)(i) and 157.210 permit the
construction of non-main line facilities and main
line facilities, respectively, without restriction on
their location. For example, a company can rely on
its Part 157 blanket certificate to replace the
capacity of a segment of obsolete pipeline with new
pipeline that may need to be located at considerable
distance from the old pipeline in order to avoid a
housing development constructed since the old
pipeline was installed or to install auxiliary
facilities such as anodes offset from the existing
right-of-way to provide cathodic protection.
E:\FR\FM\04DER1.SGM
04DER1
Federal Register / Vol. 78, No. 233 / Wednesday, December 4, 2013 / Rules and Regulations
require that such facilities obtain
blanket or case-specific certificate
authorization.
6. ‘‘Grandfathering’’ Existing Section
2.55(a) Installations
49. For the reasons discussed above,
we believe modifying section 2.55(a) to
codify right-of-way and work space
constraints does no more than restate
existing Commission policy and
practice. Nevertheless, we acknowledge
that although these constraints have
been clear to the Commission, they may
have been subject to misinterpretation
by the industry.
50. The commentors declare
companies have relied on section
2.55(a) to install facilities that are not in
compliance with right-of-way and work
space requirements. As explained
above, any such installations are NGAjurisdictional facilities constructed and
operated without NGA authority.
However, given that section 2.55(a) did
not previously include an explicit
description of the inherent right-of-way/
work space constraint, and in view of
commentors’ claims of companies’ good
faith reliance on section 2.55(a) to
install facilities which violate this
constraint, we will not require the
companies to obtain a blanket or casespecific certificate authorization for
thefacilities purportedly installed
pursuant to section 2.55(a) prior to the
effective date of this rule, provided such
facilities comply with all other
applicable federal, state, and local rules
and regulations. That said, if we become
aware of facilities installed relying on
section 2.55(a) that do not meet the
constraints of that section which are the
cause of any significant adverse
environmental impact, we may then
wreier-aviles on DSK5TPTVN1PROD with RULES
they will not satisfy the location or work
space requirements of § 2.55(a).’’ 79
7. Burden of Section 2.55’s Right-of-Way
Requirement
51. INGAA argues that we erred by
not including the ‘‘additional time and
burden’’ of blanket or case-specific
section 7 procedures that will now be
necessary for facilities that cannot meet
section 2.55(a) siting requirements.80
This objection presumes the section
2.55(a) right-of-way/work space
constraint constitutes a new burden
imposed by this rule. As previously
discussed, this not the case, because
section 2.55 activities have always been
restricted to an authorized right-of-way
or facility site and prescribed work
spaces. Activities that exceed these
limits are not covered under section
2.55, and thus no additional time and
burden is being imposed—they remain
subject to the same time and burden that
they were before. Consequently, we do
not include activities that did not and
will not qualify under section 2.55(a) in
our estimate of the additional time and
burden imposed by this rule.
52. INGAA asserts the ‘‘NOPR would
convert all auxiliary installations
outside of existing rights of way and
historical work spaces into Natural Gas
Act jurisdictional facility construction
that would require certificate
authorization and formal agency
consultation.’’ 81 We concur, but as
noted, we will not compel companies to
seek blanket or case-specific
authorization for facilities installed in
erroneous reliance on section 2.55(a)
unless we find reason to suspect such
facilities are a cause of significant
adverse environmental impact. Where
facilities already in place present no
such issues, we find no reason to subject
them to further review.
53. In any event, the NOPR and this
Final Rule do no more than clarify the
source of our authority over certain
types of facilities. Therefore, we reject
INGAA’s claim that we include an
estimate of the burden on companies of
filing certificate applications and
consulting with environmental agencies
for facilities allegedly ‘converted’ to
blanket or case-specific status.
79 In 1999, the Commission proposed adding the
following sentence at the end of section
157.202(b)(2)(i): ‘‘Eligible facility includes
observation wells.’’ Landowner Notification,
Expanded Categorical Exclusions, and Other
Environmental Filing Requirements, Notice of
Proposed Rulemaking, 64 FR 27717 (May 21, 1999),
FERC Stats. & Regs. ¶ 32,540 (1999). Ultimately, the
Commission elected not to include the sentence
based on its conclusion at the time that observation
wells could be constructed under section 2.55(a).
Landowner Notification, Expanded Categorical
Exclusions, and Other Environmental Filing
Requirements, 64 FR 57374 (October 25, 1999),
FERC Stats. & Regs. ¶ 31,082, at 30,959 (1999).
Commentors in this proceeding have pointed out
that many observation wells, rather than being
drilled to monitor operations at an existing gas
storage facility, are drilled in order to determine
whether a planned new storage facility is feasible,
in which case a company may not have any existing
right-of-way and would not be able to meet section
2.55(a) requirements. In view of this, we will
include observation wells in revised section
157.202(b)(2)(i) to ensure that if such wells are not
able to meet section 2.55(a) siting restrictions, they
will then be eligible to be considered for
authorization under the blanket certificate program.
VerDate Mar<15>2010
13:12 Dec 03, 2013
Jkt 232001
B. Landowner Notification
54. This Final Rule adopts regulations
to provide for advance landowner
notification for auxiliary and
replacement projects under section 2.55
and for maintenance activities under
section 380.15. As previously discussed,
80 INGAA’s
81 INGAA’s
PO 00000
March 2013 Comments at p. 5.
March 2013 Comments at p. 22.
Frm 00015
Fmt 4700
Sfmt 4700
72805
we consider it appropriate to give
landowners prior notice to the extent
practicable before intruding onto their
property as a courtesy and to avoid
potential conflict between landowners
and gas companies. Commentors do not
dispute the virtues of informing
landowners of company activities, but
insist the notice procedures described in
the NOPR are impractical.
55. In response to commentors’
concerns, we will revise the proposed
notification obligations to (1) specify the
types of maintenance activities that
merit individual notice; (2) limit notice
to landowners whose property is
crossed or used for section 2.55 and
section 380.15 activities; and (3) reduce
the prior notice period from 10 days to
five days. These modifications should
significantly diminish the burden of
complying with the new requirements
for prior notice to landowners.
56. Instead of mandating notice to
landowners for all section 380.15
maintenance activities, as proposed in
the NOPR, we will only require prior
notice of those more substantial
activities that will result in ground
disturbance. In addition, we are
reducing the scope of notification
proposed in the NOPR, which would
have required that notice be provided
not only to directly affected landowners,
but also to adjacent landowners and to
landowners with a residence within 50
feet of a proposed work area.82
Commentors assert this is overly broad
and request that we remove abutting
landowners and landowners with a
residence within 50 feet of the proposed
work area from the definition of
‘‘affected landowners.’’ Although the
NOPR would have required the same
scope of notice that companies are
required to provide for projects under
the Part 157 blanket certificate
regulations, the commentors have
convinced us that more limited
landowner notification requirements are
appropriate for companies’ activities
under section 2.55 and 380.15, since
such projects are likely to be smaller,
take a shorter period of time to
82 The NOPR defined ‘‘affected landowners’’ for
purposes of companies’ activities under sections
2.55 and 380.15 as ‘‘owners of property interests,
as noted in the most recent tax notice, whose
property (1) is directly affected (i.e., crossed or
used) by the proposed activity, including all rightsof-way, facility sites, access roads, pipe and
contractor yards, and temporary work space; or (2)
abuts either side of an existing right-of-way or
facility site, or abuts the edge or a proposed rightof-way or facility site which runs along a property
line in the area in which the facilities would be
constructed, or contains a residence within 50 feet
of the proposed construction work area.’’ 78 FR at
683, NOPR, FERC Stats. & Regs. ¶ 32,696 at P 30
(corss-referenced at 141 FERC ¶ 61,228).
E:\FR\FM\04DER1.SGM
04DER1
72806
Federal Register / Vol. 78, No. 233 / Wednesday, December 4, 2013 / Rules and Regulations
accomplish, and be less disruptive than
blanket certificate projects.
57. Finally, while the NOPR
stipulated a 10-day prior notice, we
accept commentors’ claim that some
activities, particularly unanticipated
maintenance, are not scheduled far
enough in advance to allow for a 10-day
prior notice.83 In view of this, we will
only require that landowners receive
notice five days in advance of initiating
certain activity under section 2.55 or
380.15, which we anticipate will still
allow time for landowners and a
company to discuss any concerns
landowners may have regarding
companies’ planned activities.
wreier-aviles on DSK5TPTVN1PROD with RULES
1. Jurisdictional Basis and Need for
Landowner Notification
58. INGAA asserts that the
Commission has no jurisdictional basis
to impose landowner notification
requirements for companies’
installations of auxiliary facilities and
replacement projects under section 2.55
or their maintenance activities under
section 380.15; 84 therefore, INGAA
argues that the NOPR’s proposed
landowner notification requirements for
these activities should not be adopted.
However, if the Final Rule does adopt
landowner notification requirements,
INGAA asks the Commission to explain
what circumstances changed since the
promulgation of Order No. 609 85 to
merit mandatory prior notification to
landowners before a company
commences construction under section
2.55 or maintenance under section
380.15.
59. INGAA points out 86 that in Order
No. 609 the Commission determined
that there was no need for landowner
notification because section 2.55(b)
replacements occur within an ‘‘existing
83 Additionally, commentors state that the 10-day
prior notice period prevents companies from
adjusting maintenance schedules due to weather,
equipment availability, permitting processes, etc.
84 INGAA’s March 2013 Comments at p. 7.
INGAA cites to Californians for Renewable Energy,
Inc., 133 FERC ¶ 61,194, at P 26 (2010), to support
its statement that ‘‘[t]hus far, the Commission
properly has refrained from exercising jurisdiction
over easement or right-of-way agreements, and has
appropriately deferred the formal resolution of
disputes in such matters to the courts.’’ We agree
that formal resolution of disputes over the terms of
easements and right-of-way agreements belong in
the courts and we are not claiming jurisdiction over
these matters by imposing landowner notification
requirements for Commission-authorized activities.
85 Order No. 609, 64 FR 57374 (October 25, 1999),
FERC Stats. & Regs. ¶ 31,082 (1999).
86 INGAA’s March 2013 Comments at pp. 6–7.
INGAA also notes that ‘‘[a] pipeline must own the
property or have an easement to perform
maintenance, and the same is true for a pipeline to
install, modify, replace, improve, alter, operate,
maintain, access, inspect, patrol, protect, abandon,
etc. auxiliary installations and replacement
facilities.’’ Id. at p. 12.
VerDate Mar<15>2010
13:12 Dec 03, 2013
Jkt 232001
right-of-way and subject to an existing
easement agreement, which dictates the
pipeline’s right to obtain access to
maintain the facilities.’’ 87 However,
Order No. 609 also stated that
‘‘prudence would dictate that the
pipeline should give the landowner as
much advance warning as possible to
avoid misunderstandings and illwill.’’ 88
60. Our proposal in the NOPR in this
proceeding to adopt landowner
notification requirements for
companies’ activities under section 2.55
and section 380.15 was prompted by
landowners’ expressions of concern to
Commission staff during phone
inquiries, scoping meetings, and in
other forums due to companies’
personnel appearing unannounced on or
near their property. The types of
concerns expressed by landowners arise
from construction and maintenance
crews arriving unexpectedly to engage
in activities that disrupt, or could
disrupt, landowners use of their
property, or damage their property as a
result of replacing facilities; re-grading
or replacing access roads; lowering
pipelines; performing anomaly digs; or
preventing and controlling erosion. We
view providing prior notice, which
some companies avow is routine
practice, as the least burdensome and
most practical way to ensure courtesy
and preclude conflicts with landowners.
Whenever a company conducts an
activity subject to our jurisdiction and
under authority provided by our
regulations,89 we have a right and
responsibility to impose appropriate
and reasonable conditions on that
activity.90 Our responsibility includes
87 Order No. 609, 64 FR 57374 at 57382, FERC
Stats. & Regs ¶ 31,082.
88 Id.
89 In addition, section 157.14(a)(9)(iv) of the
Commission’s regulations requires an applicant for
NGA section 7 certificate authority to certify that it
will ‘‘maintain the facilities for which a certificate
is requested in accordance with Federal safety
standards.’’ 18 CFR 157.14(a)(9)(iv) (2013).
Likewise, NGA section 7(h) gives the certificate
holder eminent domain authority to acquire rights
necessary to ‘‘construct, operate, and maintain a
pipe line.’’ 15 U.S.C. 717f(h) (2012). See Brian
Hamilton, 141 FERC ¶ 61,229, at PP 24–25 (2012)
(Hamilton). Therefore, the Commission has
jurisdiction over maintenance activities, and has
the authority to require landowner notice as a
condition of a company’s jurisdictional
maintenance activities.
90 Contrary to National Fuel’s assertion (see
National Fuel’s Comments at p. 2), the Commission
is not restricted to requiring landowner notification
only for companies’ activities under their Part 157
blanket and case-specific certificates. As discussed
supra PP 13–16 auxiliary and replacement facilities
are NGA-jurisdictional facilities that can be
constructed only with the requisite section 7
certificate authority, which the Commission
provided when it adopted section 2.55 as a
precursor to the Part 157 blanket certificate
PO 00000
Frm 00016
Fmt 4700
Sfmt 4700
ensuring that, to the extent practicable,
landowners are informed in advance
when they may be inconvenienced or
the use of their property may be
disrupted by companies’ jurisdictional
activities to construct auxiliary and
replacement facilities under section 2.55
authority or conduct maintenance
activities subject to section 380.15.
Landowners deserve an opportunity to
express concerns, and we want the
opportunity to act on those concerns if
necessary.91
61. Commentors assert that easement
agreements are the proper method for
landowners to establish any
requirements for prior notice of
company activities on private
property,92 and note that many of these
agreements specify that no notice is
required for maintenance activities.
While we recognize that some
landowners agree to forego prior notice,
we nevertheless believe it is prudent for
gas companies to provide such notice.
Landowners may misunderstand the
terms of an easement agreement or a
subsequent owner may not be aware
that the land is subject to an easement.
Therefore, regardless of whether an
easement agreement gives a company a
right enforceable under state property
law to enter on property without notice,
we believe it is appropriate and
reasonable for our regulations to require
that to the extent practicable companies
provide landowners with prior notice
construction program. Further, the authorization to
perform maintenance on gas facilities comes from
the certificate authority under which the facilities
were or will be constructed—whether it be selfimplementing section 2.55 certificate authority, Part
157 blanket certificate authority, or case-specific
certificate authority. As the Commission explained
in Hamilton, 141 FERC ¶ 61,229, at P 24, ‘‘[i]t does
not necessarily follow, however, that [a natural gas
company] has no responsibilities merely because
the activity neither falls within the replacement of
facilities under section 2.55(b) nor under the
blanket construction provisions. When the
Commission authorizes a natural gas company to
construct and operate pipeline facilities, the
authority must necessarily include authority to
maintain the pipeline.’’
91 National Fuel argues that the NOPR relied on
NEPA as a basis for requiring landowner
notification for maintenance activities. National
Fuel’s Comments at p. 3. It did not. The rationale
for requiring notification is our belief that
landowners should be informed in advance of any
activity that will take place on their property as a
consequence of our granting a company an NGA
section 7(c) certificate. The jurisdictional basis for
this requirement is as a condition to the certificate,
which we impose to ensure company actions are
consistent with the public interest. The NOPR,
however, did rely on NEPA as a basis for restricting
companies’ activities to areas subject to an
environmental review, and as a result thereof,
authorized for a particular use.
92 See INGAA’s March 2013 Comments at pp. 6
and 12, Southern Star’s Comments at p. 6, Golden
Triangle’s Comments at p. 4, WBI Energy’s
Comments at p. 7, and National Fuel’s Comments
at pp. 2–3.
E:\FR\FM\04DER1.SGM
04DER1
Federal Register / Vol. 78, No. 233 / Wednesday, December 4, 2013 / Rules and Regulations
before commencing certain activities
under section 2.55 or section 380.15.
2. Exceptions to Landowner Notification
Requirements
62. Commentors state that if the
landowner notification proposals are
adopted, the Final Rule should waive
landowner notification to provide ‘‘for
immediate access to emergency gas
leaks, acts of God, investigations related
to gas pressure or flow or SCADA
signals, or to respond to One Call
notifications on an emergency or routine
basis.’’ 93
63. Our regulations provide for a
company to take immediate action in an
emergency, as we pointed out in
response to a similar concern regarding
the imposition of a 30-day prior notice:
[This] rule does not override other
Commission regulations which permit
interstate pipelines to take prompt corrective
actions to address conditions that constitute
a safety hazard. Subpart I of Part 284 of the
Commission’s regulations exempts
emergency situations from the provisions of
section 7 of the Natural Gas Act and permits
a pipeline to take immediate action to
alleviate an emergency situation subject to a
subsequent 48-hour reporting requirement.
Section 284.262(a)(1)(iii) of Subpart I defines
emergency as ‘‘Any situation in which . . .
immediate action is required or is reasonably
anticipated to be required for the protection
of life or health or for maintenance of
physical property.’’ 94
Notwithstanding the foregoing, to assure
there will be no hesitation by gas
companies if immediate action is called
for, we will specify in sections 2.55 and
380.15 that: ‘‘For an activity required to
respond to an emergency, the five-day
prior notice period does not apply.’’
Note that events that do not necessitate
immediate access to system facilities
would not trigger our section 284
emergency provisions, and therefore
would still be subject to a five-day prior
notice.
wreier-aviles on DSK5TPTVN1PROD with RULES
3. Part 157 Landowner Notification
Exemption for Replacement Projects
64. Companies are required to provide
landowner notice prior to initiating
projects under the Part 157 blanket
certificate regulations.95 However,
section 157.203(d)(3)(i) of the
93 INGAA’s March 2013 Comments at p. 9 and
National Fuel’s Comments at p. 5.
94 Interim Revisions to Regulations Governing
Construction of Facilities Pursuant to NGPA Section
311 and Replacement of Facilities, 52 FERC
¶ 61,252, at 61,877 (1990). See also section
157.203(d)(3)(i), which states that ‘‘no landowner
notice is required’’ for any blanket program
‘‘replacement done for safety, DOT compliance,
environmental, or unplanned maintenance reasons
that are not foreseen and that require immediate
attention by the certificate holder.’’
95 18 CFR 157.203(d)(1) (2013).
VerDate Mar<15>2010
13:12 Dec 03, 2013
Jkt 232001
regulations provides a notice exemption
for replacement projects that would
have been done under section 2.55(b),
but for the fact that the replacement
projects are not of the same capacity.96
To provide consistency with new the
section 2.55 landowner notification
requirements established in this Final
Rule, we will amend section
157.203(d)(3)(i) to provide that
replacement projects that would have
been done under section 2.55(b), but for
the fact that the project alters the
designed delivery capacity of the
original facility, remains exempt from
the landowner notification requirements
of Part 157, as long as the project does
not involve ground disturbance.
Because the revised section 2.55(b)
notice requirements require landowner
notice for a ground disturbing
replacement project that substitutes in a
new same-size facility, it would be
inconsistent to retain the landowner
notice exemption in section
157.203(d)(3)(i) for a ground disturbing
replacement project that alters the
capacity of the original facility.
4. Requirement That Notification Inform
Landowners of the Availability of the
Commission’s Dispute Resolution
Division
65. WBI Energy states that any
landowner notification requirements
should not include a requirement that
companies provide landowners with
contact information or include a
description of the Commission’s Dispute
Resolution Division (DRD) Helpline.
WBI Energy asserts disputes concerning
easements and right-of-ways for existing
facilities are properly adjudicated in
state courts, and not by the Commission.
WBI Energy further argues that
including information regarding the
DRD in the notice likely would cause
landowners to incorrectly believe that
the Commission is the appropriate
venue for resolving property disputes.97
66. We recognize that the DRD
Helpline is not the appropriate venue
for determining the respective rights of
companies and landowners under state
property law or for renegotiating the
terms of easement agreements. However,
there are instances in which it is
appropriate and/or potentially helpful
for landowners to contact Commission
staff to seek informal resolution of a
dispute. For example, while a court
would be the appropriate forum to
adjudicate a dispute regarding whether
96 18 CFR 157.203(d)(3)(i) (2013). To qualify
under section 2.55(b) a replacement project must
have a substantially equivalent designed delivery
capacity as the original facility. 18 CFR 2.55(b)(1)(ii)
(2013).
97 WBI Energy’s Comments at pp. 8–9.
PO 00000
Frm 00017
Fmt 4700
Sfmt 4700
72807
an easement agreement gives a natural
gas company the right to allow another
company to lay a fiber optic cable in the
pipeline right-of-way, or to determine
the amount of monetary damages caused
to a landowner’s property by a
company’s negligence during
construction activities, it is appropriate
for a landowner to contact the
Commission if the landowner believes
that a company’s planned activities
might not comply with the provisions of
section 2.55 (e.g., may not be confined
to the existing right-of-way) or section
380.15 and for the Commission’s staff to
contact the company regarding the
matter. It also is appropriate for a
landowner to seek the Commission’s
assistance in obtaining a company’s
voluntary agreement to reasonable
accommodation requested by the
landowner (e.g., to reschedule backhoe
digging planned by the company for the
same day as a back-yard wedding
reception). In this regard, we emphasize
that section 380.15(b), Landowner
consideration, states that ‘‘[t]he desires
of landowners should be taken into
account in the planning, locating,
clearing, and maintenance of rights-ofway and the construction of facilities on
their property.’’
67. While only a court can determine
the respective rights of a company and
landowner under the terms of an
easement agreement, the terms of an
easement in no way diminish the
Commission’s NGA authority over
companies’ activities to construct or
maintain jurisdictional facilities. Thus,
we are adopting our proposal to require
that companies include the DRD
Helpline number to facilitate
landowners being able to contact and
seek assistance from Commission staff.
We encourage companies to describe the
DRD Helpline as a way for landowners
to inform the Commission of concerns
regarding a company’s planned
activities. We anticipate companies, in
providing the DRD Helpline number,
will be able to explain this without
implying, as WBI Energy worries, that a
company is acting unlawfully.98
5. Landowner Notification for
Maintenance Activities
68. Commentors state that the
Commission’s proposed prior notice
98 Id. In Order No. 609, in response to similar
apprehensions regarding a requirement for
companies to include information in landowner
notices on how to contact the Commission’s
Enforcement Hotline, we stated we did not believe
‘‘that including a reference to the Enforcement
Hotline implies the company is doing something
unlawful,’’ and added that we expected companies
‘‘will be able to present it as merely being a means
to contact the Commission, which is in fact what
it is.’’ 64 FR 57374, 57384.
E:\FR\FM\04DER1.SGM
04DER1
72808
Federal Register / Vol. 78, No. 233 / Wednesday, December 4, 2013 / Rules and Regulations
requirements for maintenance activities
may be unnecessary in view of existing
U.S. Department of Transportation
(DOT) regulations. DOT’s Pipeline and
Hazardous Materials Safety
Administration (PHMSA) requires
pipelines to develop a continuing public
education program,99 which follows
guidance provided by the American
Petroleum Institute’s (API).
Recommended Practice 1162.100 API’s
Recommended Practice 1162 requires
that ‘‘[w]hen planning pipeline
maintenance-related construction
activities,’’ gas companies ‘‘should
communicate to the audience affected
by the specific activity in a timely
manner appropriate to the nature and
extent of activity,’’ 101 and must also
notify landowners in writing biennially
of all ‘‘planned major maintenance/
construction activity.’’ 102
69. We accept that the PHMSA
requirements will be sufficient to alert
landowners to many maintenance
activities. We will therefore modify the
prior notice requirement for section
380.15 maintenance activities proposed
in the NOPR in this proceeding by
limiting notice to maintenance activities
that will cause ground disturbance.103
Given the potential disruption and
impact level of maintenance activities
that will cause ground disturbance, we
find such activities merit separate
written notice to affected landowners.
70. While some of these activities will
be included in the PHMSA-mandated
biennial report distributed to
landowners, we have no assurance that
all such activities will be. Further, while
the PHMSA report of planned major
maintenance can provide a broad
overview of a company’s future
operations, because the company only
issues this report every other year, it
does not give landowners a sufficiently
precise description of when a particular
activity will commence and conclude.
We believe that if landowners have
notice five days before a ground
disturbing project begins, this will
enable companies and landowners time
to confer, coordinate, and avoid
simultaneously undertaking
incompatible actions. Finally, we note
99 See
49 CFR 192.616 (2013).
https://mycommittees.api.org/standards/
pipeline/1162%20Links/1162nonprintable.pdf.
101 See https://mycommittees.api.org/standards/
pipeline/1162%20Links/1162nonprintable.pdf,
sections 4.10 and C.10.
102 Id. See Table 2–1, Summary of Public
Awareness Communications for Hazardous Liquids
and Natural Gas Transmission Pipeline Operators.
103 However, if in the future, we receive
objections indicating that landowners are not
adequately informed of particular maintenance
activities, we may consider applying a separate
prior notice requirement specific to such activities.
wreier-aviles on DSK5TPTVN1PROD with RULES
100 See
VerDate Mar<15>2010
13:12 Dec 03, 2013
Jkt 232001
that PHMSA is focused on the safe
operation of existing facilities, whereas
the Commission purview of the public
interest covers a broader set of concerns.
Thus, while PHMSA may find no cause
to take into account a company’s
activity that inconveniences a
landowner but does not compromise the
safe operation of gas facilities, the
Commission may find such an activity
to be within the scope of its authority
to ensure the activity is consistent with
the public convenience and necessity.
71. MidAmerican Energy and Golden
Triangle request that the Commission
provide a definition of maintenance
under section 380.15 of the
regulations.104 Golden Triangle states
that any time its personnel enter the
right-of-way for periodic routine
activities (e.g., pipe-to-soil readings,
leak patrols, surveillance patrols, meter
station inspections, and walking the
pipeline right-of-way), a landowner will
construe that entrance as a maintenance
activity.105
72. We see no need to craft a
definition describing all maintenance
activities, although we can say that we
do not share Golden Triangle’s apparent
view that an intrusion by company
personnel onto a landowner’s property
for monitoring purposes is not
‘‘maintenance’’ so long as the
monitoring does not lead to any
additional activity during the same
intrusion. We consider all of the
activities identified by Golden Triangle
to be maintenance. However, as stated
above, we are scaling back the NOPR’s
proposal so that prior notice to
landowners will only be required for
ground disturbing maintenance
activities. Thus, while we believe
Golden Triangle’s examples are
maintenance activities, as long as these
minor activities do not cause ground
disturbance, they will not trigger any
Commission requirement for advance
notice to landowners.
6. Burden Resulting From Notification
Requirement
73. Commentors argue that the NOPR
did not fully analyze the expense and
burden associated with requiring
landowner notification for auxiliary,
replacement, and maintenance
activities.106 INGAA stresses that
maintenance alone entails hundreds of
thousands of property visits per year,
and that to track these activities
company personnel would have to write
104 MidAmerican Energy’s Comments at p. 5 and
Golden Triangle’s Comments at p. 9.
105 Golden Triangle’s Comments at pp. 9–10.
106 INGAA’s March 2013 Comments at pp. 21–25,
Southern Star’s Comments at pp. 5–6, and National
Fuel’s Comments at p. 2.
PO 00000
Frm 00018
Fmt 4700
Sfmt 4700
descriptions of each activity, visit the
site to determine if new residences were
installed since the last patrol, hire a
land agent to identify all affected and
abutting landowners, and craft and mail
formal letters.107
74. Golden Triangle asserts that the
expense of complying with the
proposed landowner notification
requirements will have a significant
impact on small entities.108 Golden
Triangle states that compliance with the
landowner notification requirements
will include increased costs to hire
either a contractor or full-time
employee, to create a database or
purchase specialty software, and to mail
out letters to all of its right-of-way
easement holders.109
75. WBI Energy and National Fuel
argue that the Commission
underestimated the amount of time it
will take companies to prepare the
notices.110 WBI Energy and INGAA state
that the NOPR’s estimate that there will
be three times as many maintenance
projects as section 2.55 projects is a
gross underestimation.111 National Fuel
insists that the NOPR’s estimate that the
entire industry will spend 39,000 hours
to satisfy the notification requirement is
low. National Fuel predicts that it will
be required to spend approximately six
hours to prepare and deliver notices to
all affected landowners for each
maintenance activity.112 Golden
Triangle asserts it will spend at least 16
hours on 250 letters for mowing or
noxious weed control, in addition to the
eight hours it estimates will be required
to research, update, and prepare
separate letters for abutting
landowners.113 In addition,
MidAmerican Energy states that the
landowner notification requirement will
impose varying burdens on individual
pipelines based on the activity
undertaken. For example, it estimates
that farm tap installation and
maintenance will require 5,400 letters
per year; check, operate, and lubricate
maintenance will require 30,000 letters
107 INGAA’s
March 2013 Comments at p. 10.
Triangle claims it is a small entity,
which the Small Business Administration (SBA)
Office of Size Standards defines a natural gas
company transporting natural gas as small if its
annual receipts are less than $25.5 million. See 13
CFR § 121.201 (2013), Subsector 486 and SBA’s
Table of Small Business Size Standards, effective
March 26, 2012, available at: https://www.sba.gov/
sites/default/files/files/Size_Standards_Table.pdf.
109 Golden Triangle’s Comments at pp. 7–8.
110 WBI Energy’s Comments at p. 11 and National
Fuel’s Comments at p. 4.
111 WBI Energy’s Comments at p. 11.
112 National Fuel’s Comments at pp. 4–5.
113 Golden Triangle’s Comments at p. 9.
108 Golden
E:\FR\FM\04DER1.SGM
04DER1
wreier-aviles on DSK5TPTVN1PROD with RULES
Federal Register / Vol. 78, No. 233 / Wednesday, December 4, 2013 / Rules and Regulations
per year; and leak detection surveys will
require 7,700 letters per year.114
76. We acknowledge that given the
wide range of maintenance activities
described by commentors, we may have
underestimated the burden of providing
prior notice to landowners that would
have resulted from the NOPR’s proposal
to require that companies notify
landowners, including abutting
landowners, prior to commencing any
activities under section 2.55 or section
380.15. However, as discussed above,
we are limiting the requirement for prior
notice to activities that will involve
ground disturbance. In addition, we are
eliminating the proposed requirement
that companies give prior notice to
abutting landowners and to landowners
with a residence within 50 feet of a
proposed work area.
77. We believe these modifications to
the NOPR’s proposed notice
requirements will alleviate the concerns
for the majority of the activities cited by
commentors. As a result, we will use a
multiplier of two times the number of
all regulated companies’ estimated
annual auxiliary installations under
section 2.55(a) 115 as a reasonable
estimate of the total annual number of
auxiliary installations, replacement
projects, and maintenance activities that
will require prior notice to landowners
because the activities will result in
ground disturbance. We acknowledge
that basing the estimated total number
of activities requiring prior notice on
regulated companies’ estimates of the
number of section 2.55(a) auxiliary
installations undertaken annually is not
going to yield the same number as
basing our estimate on on-site surveys
or other verifiable data; nevertheless, we
believe our estimate is reasonable and is
as accurate an estimate as can be readily
established for purposes of calculating
the anticipated burden.
78. As discussed herein, we are also
responding to companies’ concerns that
it is often impractical to notify
landowners at least 10 days prior to the
start of any section 2.55 or section
380.15 activity, as the NOPR’s proposal
would have required. By requiring that
notice be received five days and not 10
days prior to undertaking any activity,
and limiting notice to only ground
disturbing rather than all section 2.55
and section 380.15 activities, we believe
companies will be subject to the
minimal inconvenience necessary to
114 For maintenance activities on their systems,
WBI Energy estimated it would have to send 19,500
letters, Northern Natural estimated 45,000 letters,
and National Fuel estimated 220,000 letters.
115 Based on a survey of nine jurisdictional
companies, we estimate that approximately 7,605
auxiliary installation projects occur each year.
VerDate Mar<15>2010
13:12 Dec 03, 2013
Jkt 232001
ensure that landowners receive
adequate advance notice of activities on
their property that could adversely
affect them.
79. Further, while Golden Triangle
indicates that compliance with the
landowner notification requirements
may require companies to create a
database or purchase specialty software,
we do not believe it is unreasonable or
burdensome if the new notice
requirements necessitate that some
companies update their databases. All
gas companies (regardless of size) need
to know, both to enhance, replace, and
maintain their facilities and to be able
to respond to emergencies, precisely
where their rights-of-way lie, how to get
to their facilities, and how to contact the
owners of the properties their facilities
sit upon.116 The new notice
requirements require companies to do
little more than access this existing
information and update it as needed.117
Preparation of a notice using
information a company already needs to
have on hand should not be
burdensome or delay the
commencement or progress of activities
under section 2.55 or section 380.15.
III. Information Collection Statement
80. The Paperwork Reduction Act
(PRA) 118 requires each federal agency to
seek and obtain Office of Management
and Budget (OMB) approval before
116 Companies should already have such
information on file, given that gas facilities
generally were constructed under case-specific
certificates obtained in proceedings in which the
companies were required to give affected
landowners notice in accordance with section
157.6(d), or were constructed under the blanket
certificate regulations which require in section
157.203(d) that companies give landowners notice
of all projects subject to those regulations’ prior
notice provisions. In addition, companies need to
periodically update such information to be able to
comply with the PHMSA biennial reporting
requirement. Further, since some of the major
maintenance projects included in the PHMSA
report will also qualify for prior notice under our
new regulations, companies should be able to use
the same project description to satisfy both PHMSA
and Commission requirements.
117 Golden Triangle argues that it does not have
a database of its easement holders. Golden
Triangle’s Comments at pp. 7–8. We expect gas
companies to have documented the metes and
bounds, terms of, and parties to all existing
easements. While we recognize that this is not a
static data set, we expect companies to conduct
systematic reviews to keep this information current.
We note Golden Triangle acknowledges, as
discussed above, that its personnel need to enter its
rights-of-way for periodic routine activities
including pipe-to-soil readings, leak patrols,
surveillance patrols, meter station inspections, and
walking the pipeline right-of-way. Golden
Triangle’s Comments at pp. 9–10. If Golden
Triangle does not have a database that identifies the
precise location of and owners of the properties on
which it has its rights-of-way, it should.
118 44 U.S.C. 3501–3520 (2012).
PO 00000
Frm 00019
Fmt 4700
Sfmt 4700
72809
undertaking a collection of information
directed to ten or more persons or
contained in a rule of general
applicability.119 The OMB’s regulations
implementing the PRA require approval
of certain information collection
requirements imposed by agency
rules.120 Upon approval of a collection
of information, OMB will assign an
OMB control number and an expiration
date. Respondents subject to the filing
requirements of an agency rule will not
be penalized for failing to respond to the
collection of information unless the
collection of information displays a
valid OMB control number.
81. The Commission is submitting the
revised reporting requirements to OMB
for its review and approval. The only
entities affected by this rule would be
natural gas companies under the
Commission’s jurisdiction. The
information collection requirements in
this Final Rule are identified as follows.
82. FERC–577, ‘‘Gas Pipeline
Certificates: Environmental Impact
Statements,’’ identifies the
Commission’s information collections
relating to the requirements set forth in
NEPA and Parts 2, 157, 284, and 380 of
the Commission’s regulations.
Applicants have to conduct appropriate
studies which are necessary to
determine the impact of the
construction and operation of proposed
jurisdictional facilities on human and
natural resources, and the measures
which may be necessary to protect the
values of the affected area. These
information collection requirements are
mandatory.
83. Because this Final Rule adds a
landowner notification requirement for
certain activities undertaken pursuant to
sections 2.55, 157, and 380.15 of our
regulations, the overall burden on the
industry will increase. However,
because natural gas companies subject
to our jurisdiction must already notify
landowners in conjunction with NGA
sections 3 projects and 7 case-specific
applications and when conducting
activities under Part 157 of our
regulations, no new technology will be
needed and no start-up costs will be
incurred. Further, even without the new
notification requirement, it is standard
practice for some companies to inform
landowners prior to coming onto their
property, both as a courtesy and to
avoid potential conflicts in landowner
and company activities. Thus, the
notification is expected to be consistent
119 OMB’s regulations at 5 CFR 1320.3(c)(4)(i)
(2013) require that ‘‘[a]ny recordkeeping, reporting,
or disclosure requirement contained in a rule of
general applicability is deemed to involve ten or
more persons.’’
120 5 CFR 1320 (2013).
E:\FR\FM\04DER1.SGM
04DER1
72810
Federal Register / Vol. 78, No. 233 / Wednesday, December 4, 2013 / Rules and Regulations
with current industry practices for some
companies, and consequently to impose
little additional burden on those
companies.
84. We are making some minor
modifications to the numbers used to
derive our estimate. Because, as revised
by this Final Rule, the prior notice
requirement will only apply to those
activities that require ground
disturbance (and not to all section 2.55
and section 380.15 activities, as was
proposed in the NOPR) and will only
require notice to landowners whose
property will be crossed or used (and
not to abutting landowners and
landowners with a residence within 50
feet of the proposed work area, as the
NOPR would have required), we believe
the revised estimated burden can no
longer be characterized as
underestimated. The vast majority of
activities that commentors identified
(principally maintenance, such as
mowing, noxious weed control, and
equipment inspection and lubrication)
will not be subject to our revised
notification requirements. As a result,
we are decreasing our estimate of the
burden to notify landowners for
maintenance activities, as described
above in section 6: Burden Resulting
from Notification Requirement.121 In the
NOPR, Commission staff requested a
small representative sample of nine
regulated natural gas companies to
estimate the number of section 2.55(a)
activities conducted each year. One
company provided a response too late to
be included in the NOPR estimate.
Factoring in this company’s data results
in only a trivial change to the burden
estimate in this Final Rule.
85. We are also including the burden
associated with the change to section
157.203(d)(3) which was not included
Annual
number of
respondents
(A)
Regulation section for new landowner
notification requirements
CFR
CFR
CFR
CFR
Annual
number of
filings per
respondent 122
(B)
Number of
hours per
filing
(C)
Total
annual
hours
(A) × (B) × (C)
2.55(a) ........................................................................
2.55(b) ........................................................................
157.203(d)(3) .............................................................
380.15 ........................................................................
165
165
165
165
46
3
3
92
2
2
2
2
15,180
990
990
30,360
Total Annual Burden Hours ..............................................
wreier-aviles on DSK5TPTVN1PROD with RULES
18
18
18
18
in the NOPR estimates. As discussed
above, to ensure that the landowner
notification requirements in sections
2.55(b) and 157.203(d)(3)(i) are
equivalent, we are revising section
157.203(d)(3)(i) to require notice for
ground disturbing replacement projects
that would have qualified under section
2.55 but for the fact that replacement
facilities are not of the same capacity
and because of that fact are installed
under the blanket certificate provisions.
As a conservative estimate of the
number of such capacity altering
replacement projects, we assume that
the same number of replacements take
place under the Part 157, Subpart F,
blanket regulations as under section
2.55(b). This is reflected in the table
below. We estimate the additional
paperwork burden that this Final Rule
would impose in the table below.
..............................
..............................
..............................
47,520
86. Given that some companies
currently voluntarily comply with the
new notification requirements, we
believe that the actual industry-wide
increase in burden is likely to be less
than what we have estimated here.
Information Collection Costs: The
Commission projects the average cost
for all respondents to be as follows: 123
• $2,898,720 per year for all regulated
entities;
• $17,568 per year for each regulated
entity.
Title: FERC–577.
Action: Revision.
OMB Control Nos.: 1902–0128.
Respondents: Natural gas pipeline
companies.
Frequency of Responses: On occasion.
Necessity of Information: The
requirement to notify landowners is
necessary for the Commission to carry
out its NGA responsibilities and meet
the Commission’s objectives of
addressing landowner concerns fairly.
121 Supra
PP 73–79.
column reflects a rounded estimate for
each jurisdictional natural gas company, averaged
over all of the existing 165 such companies.
123 The cost figures are derived by multiplying the
total hours to prepare a response by an hourly wage
122 This
VerDate Mar<15>2010
13:12 Dec 03, 2013
Jkt 232001
(Attention: Information Clearance
Officer, Office of the Executive
Director), by phone 202–502–8663, or
by email to DataClearance@ferc.gov.
Comments on the requirements may
also be sent to the Office of Information
and Regulatory Affairs, Office of
Management and Budget, Washington,
DC 20503 [Attention: Desk Officer for
the Federal Energy Regulatory
Commission]. For security reasons,
comments should be sent by email to
OMB at oira_submission@omb.eop.gov.
Please reference OMB Control No.
1902–0128, FERC–577, and Docket No.
RM12–11 in your submission.
The information provided to
landowners is intended to
accommodate, to the extent possible,
any concerns they may have regarding
a natural gas company’s planning,
locating, clearing, right-of-way
maintenance, and facility construction
or replacement activities on their
property.
Internal Review: The Commission has
reviewed the revisions and has
determined that they are necessary.
These requirements conform to the
Commission’s need for efficient
information collection, communication,
and management within the energy
industry. The Commission has assured
itself, by means of internal review, that
there is specific, objective support for
the burden estimates associated with the
information collection requirements.
87. Interested persons may obtain
information on the reporting
requirements by contacting the Federal
Energy Regulatory Commission, 888
First Street NE., Washington, DC 20426
IV. Environmental Analysis
88. The Commission is required to
prepare an Environmental Assessment
or an Environmental Impact Statement
for any action that may have a
significant adverse effect on the human
environment.124 The Commission has
categorically excluded certain actions
from these requirements as not having a
estimate of $61 (based on average civil engineer
wages and benefit information obtained from the
Bureau of Labor Statistics’ data at https://bls.gov/
oes/current/naics4_221200.htm#17-0000 and https://
www.bls.gov/news.release/ecec.nr0.htm).
124 Regulations Implementing the National
Environmental Policy Act of 1969, Order No. 486,
52 FR 47897 (December 17, 1987), FERC Stats. &
Regs., Regulations Preambles 1986–1990 ¶ 30,783
(1987).
PO 00000
Frm 00020
Fmt 4700
Sfmt 4700
E:\FR\FM\04DER1.SGM
04DER1
Federal Register / Vol. 78, No. 233 / Wednesday, December 4, 2013 / Rules and Regulations
significant effect on the human
environment.125 Generally, the actions
proposed to be taken here fall within the
categorical exclusions in the
Commission’s regulations that are
clarifying, corrective, or procedural and
for information gathering, analysis, and
dissemination.126 Accordingly, an
environmental review is not necessary
and has not been prepared in
connection with this rulemaking .
wreier-aviles on DSK5TPTVN1PROD with RULES
V. Regulatory Flexibility Act
89. The Regulatory Flexibility Act of
1980 (RFA) 127 generally requires a
description and analysis of agency rules
that will have a significant economic
impact on a substantial number of small
entities. The RFA mandates
consideration of regulatory alternatives
that accomplish the stated objectives of
a proposed rule and that minimize any
significant economic impact on a
substantial number of small entities.
The SBA Office of Size Standards
develops the numerical definition of a
small business.128 The SBA has
established a size standard for natural
gas pipeline companies transporting
natural gas, stating that a firm is small
if its annual receipts are less than $25.5
million.129
90. Golden Triangle disagrees with
the Commission’s statement that the
proposed rule would not have a
significant economic impact on a
substantial number of small entities. We
respond to Golden Triangle in Section
B.5 above. We modify the small
business impact below based on the
revised estimates used in the
information collection section above.
91. The new regulations impose
requirements only on natural gas
companies subject to the Commission’s
jurisdiction, the majority of which are
not small businesses. Most companies
regulated by the Commission do not fall
within the RFA’s definition of a small
entity. Approximately 165 companies—
nearly all of them large entities—would
be potential respondents subject to data
collection FERC–577 reporting
requirements. For the year 2011 (the
most recent year for which information
is available), only 15 companies not
affiliated with larger companies had
annual revenues of less than $25.5
million. Moreover, the reporting
125 18
CFR 380.4 (2013).
CFR 380.4(a)(1) and (5) (2013).
127 5 U.S.C. 601–612 (2012).
128 13 CFR 121.101 (2013).
129 13 CFR 121.201, Subsector 486 (2013); see
SBA’s Table of Small Business Size Standards,
effective March 26, 2012, available at: https://
www.sba.gov/sites/default/files/files/
Size_Standards_Table.pdf.
126 18
VerDate Mar<15>2010
13:12 Dec 03, 2013
Jkt 232001
requirements should have no
meaningful economic impact on
companies—be they large or small—
subject to the Commission’s regulatory
jurisdiction. The Commission estimates
that the revised cost per small entity is
$17,568 per year. The Commission does
not consider the estimated impact per
entity to be significant. Accordingly,
pursuant to section 605(b) of the RFA,
the Commission certifies that this Final
Rule should not have a significant
economic impact on a substantial
number of small entities.
VI. Document Availability
92. In addition to publishing the full
text of this document in the Federal
Register, the Commission provides all
interested persons an opportunity to
view and/or print the contents of this
document via the Internet through
FERC’s Home Page (https://
www.ferc.gov) and in FERC’s Public
Reference Room during normal business
hours (8:30 a.m. to 5:00 p.m. Eastern
time) at 888 First Street NE., Room 2A,
Washington DC 20426.
93. From FERC’s Home Page on the
Internet, this information is available on
eLibrary. The full text of this document
is available on eLibrary in PDF and
Microsoft Word format for viewing,
printing, and/or downloading. To access
this document in eLibrary, type the
docket number excluding the last three
digits of this document in the docket
number field.
94. User assistance is available for
eLibrary and the FERC’s Web site during
normal business hours from FERC
Online Support at 202–502–6652 (toll
free at 1–866–208–3676) or email at
ferconlinesupport@ferc.gov, or the
Public Reference Room at (202) 502–
8371, TTY (202) 502–8659. Email the
Public Reference Room at
public.referenceroom@ferc.gov.
VII. Effective Date and Congressional
Notification
95. These regulations are effective
February 3, 2014. The Commission has
determined, with the concurrence of the
Administrator of the Office of
Information and Regulatory Affairs of
OMB, that this rule is not a ‘‘major rule’’
as defined in section 351 of the Small
Business Regulatory Enforcement
Fairness Act of 1996. This rule is being
submitted to the Senate, House,
Government Accountability Office, and
the Small Business Administration.
List of Subjects
18 CFR Part 2
Administrative practice and
procedure, and Reporting and
recordkeeping requirements.
PO 00000
Frm 00021
Fmt 4700
Sfmt 4700
72811
187 CFR Part 157
Administrative practice and
procedure, Natural gas, and Reporting
and recordkeeping requirements.
18 CFR Part 380
Environmental impact statements,
and Reporting and recordkeeping
requirements.
By the Commission.
Kimberly D. Bose,
Secretary.
In consideration of the foregoing, the
Commission amends Parts 2, 157, and
380, Chapter I, Title 18, Code of Federal
Regulations, as follows:
PART 2—GENERAL POLICY AND
INTERPRETATIONS
1. The authority citation for Part 2
continues to read as follows:
■
Authority: 5 U.S.C. 601; 15 U.S.C. 717–
717z, 3301–3432; 16 U.S.C. 792–828c, 2601–
2645, 42 U.S.C. 4321–4370h, 7101–7352.
2. Amend § 2.55 by:
a. Adding a sentence to the end of
paragraph (a)(1);
■ b. Revising paragraph (b)(1)(ii); and
■ c. Adding paragraph (c).
The revision and additions read as
follows:
■
■
§ 2.55
7(c).
Definition of terms used in section
*
*
*
*
*
(a) * * *
(1) * * * The auxiliary installations
must be located within the existing or
proposed certificated permanent rightof-way or authorized facility site and
must be constructed using the
temporary work space used to construct
the existing or proposed facility (see
Appendix A to this Part 2 for guidelines
on what is considered to be the
appropriate work area in this context).
*
*
*
*
*
(b) * * *
(1) * * *
(ii) The replacement facilities will
have a substantially equivalent designed
delivery capacity, will be located in the
same right-of-way or on the same site as
the facilities being replaced, and will be
constructed using the temporary work
space used to construct the existing
facility (see Appendix A to Part 2 for
guidelines on what is considered to be
the appropriate work area in this
context);
*
*
*
*
*
(c) Landowner notification. (1) No
activity described in paragraphs (a) and
(b) of this section that involves ground
disturbance is authorized unless a
company makes a good faith effort to
notify in writing each affected
E:\FR\FM\04DER1.SGM
04DER1
72812
Federal Register / Vol. 78, No. 233 / Wednesday, December 4, 2013 / Rules and Regulations
landowner, as noted in the most recent
county/city tax records as receiving the
tax notice, whose property will be
crossed or used as a result of the
proposed activity, at least five days
prior to commencing any activity under
this section. For an activity required to
respond to an emergency, the five-day
prior notice period does not apply. The
notification shall include at least:
(i) A brief description of the facilities
to be constructed or replaced and the
effect the activity may have on the
landowner’s property;
(ii) The name and phone number of a
company representative who is
knowledgeable about the project; and
(iii) A description of the
Commission’s Dispute Resolution
Division Helpline, which an affected
person may contact to seek an informal
resolution of a dispute as explained in
section 1b.21(g) of the Commission’s
regulations (18 CFR 1b.21(g)) and the
Dispute Resolution Division Helpline
number.
(2) ‘‘Affected landowners’’ include
owners of property interests, as noted in
the most recent county/city tax records
as receiving tax notice, whose property
is directly affected (i.e. crossed or used)
by the proposed activity, including all
rights-of-way, facility sites (including
compressor stations, well sites, and all
above-ground facilities), access roads,
pipe and contractor yards, and
temporary work space.
■ 3. Revise Appendix A to Part 2 to read
as follows:
wreier-aviles on DSK5TPTVN1PROD with RULES
Appendix A to Part 2—Guidance for
Determining the Acceptable
Construction Area for Auxiliary and
Replacement Facilities
These guidelines shall be followed to
determine what area may be used to
construct the auxiliary or replacement
facility. Specifically, they address what areas,
in addition to the permanent right-of-way,
may be used.
An auxiliary or replacement facility must
be within the existing right-of-way or facility
site as specified by § 2.55(a)(1) or (b)(1)(ii).
Construction activities for the auxiliary or
replacement facility can extend outside the
current permanent right-of-way if they are
within the temporary and permanent right-ofway and associated work spaces used in the
original installation.
If documentation is not available on the
location and width of the temporary and
permanent rights-of-way and associated work
spaces that were used to construct the
original facility, the company may use the
following guidance for the auxiliary
installation or replacement, provided the
appropriate easements have been obtained:
a. Construction should be limited to no
more than a 75-foot-wide right-of-way
including the existing permanent right-ofway for large diameter pipeline (pipe greater
VerDate Mar<15>2010
13:12 Dec 03, 2013
Jkt 232001
than 12 inches in diameter) to carry out
routine construction. Pipeline 12 inches in
diameter and smaller should use no more
than a 50-foot-wide right-of-way.
b. The temporary right-of-way (working
side) should be on the same side that was
used in constructing the original pipeline.
c. A reasonable amount of additional
temporary work space on both sides of roads
and interstate highways, railroads, and
significant stream crossings and in side-slope
areas is allowed. The size should be
dependent upon site-specific conditions.
Typical work spaces are:
Typical extra area
(width/length)
Item
Two lane road
(bored).
Four lane road
(bored).
Major river (wet cut) ..
Intermediate stream
(wet cut).
Single railroad track ..
25–50 by 100 feet.
50 by 100 feet.
100 by 200 feet.
50 by 100 feet.
25–50 by 100 feet.
d. The auxiliary or replacement facility
must be located within the permanent rightof-way or, in the case of nonlinear facilities,
the cleared building site. In the case of
pipelines this is assumed to be 50 feet wide
and centered over the pipeline unless
otherwise legally specified.
However, use of the above guidelines for
work space size is constrained by the
physical evidence in the area. Areas
obviously not cleared during the original
construction, as evidenced by stands of
mature trees, structures, or other features that
exceed the age of the facility being replaced,
should not be used for construction of the
auxiliary or replacement facility.
If these guidelines cannot be met, the
company should consult with the
Commission’s staff to determine if the
exemption afforded by § 2.55 may be used. If
the exemption may not be used, construction
authorization must be obtained pursuant to
another regulation under the Natural Gas Act.
PART 157—APPLICATIONS FOR
CERTIFICATES OF PUBLIC
CONVENIENCE AND NECESSITY AND
FOR ORDERS PREMITTING AND
APPROVING ABANDONMENT UNDER
SECTION 7 OF THE NATURAL GAS
ACT
4. The authority citation for Part 157
continues to read as follows:
■
Authority: 15 U.S.C. 717–717z.
5. Amend § 157.202 by revising
paragraph (b)(2)(i) to read as follows:
■
§ 157.202
Definitions.
*
*
*
*
*
(b) * * *
(2)(i) Eligible facility means, except as
provided in paragraph (b)(2)(ii) of this
section, any facility subject to the
Natural Gas Act jurisdiction of the
Commission that is necessary to provide
service within existing certificated
PO 00000
Frm 00022
Fmt 4700
Sfmt 4700
levels. Eligible facility also includes any
gas supply facility or any facility,
including receipt points, needed by the
certificate holder to receive gas into its
system for further transport or storage,
and interconnecting facilities between
transporters that transport natural gas
under part 284 of this chapter. Further,
eligible facility includes main line,
lateral, and compressor replacements
that do not qualify under § 2.55(b) of
this chapter because they will result in
an incidental increase in the capacity of
main line facilities, or because they will
not satisfy the location or work space
requirements of § 2.55(b). Replacements
must be done for sound engineering
purposes. Replacements for the primary
purpose of creating additional main line
capacity are not eligible facilities;
however, replacements and the
modification of facilities to rearrange
gas flows or increase compression for
the primary purpose of restoring service
in an emergency due to sudden
unforeseen damage to main line
facilities are eligible facilities. Eligible
facility also includes auxiliary
installations and observation wells
which do not qualify under § 2.55(a) of
this chapter because they will not
satisfy the location or work space
requirements of § 2.55(a).
*
*
*
*
*
■ 6. Amend § 157.203 by revising
paragraph (d)(3)(i) to read as follows:
§ 157.203
Blanket certification.
*
*
*
*
*
(d) * * *
(3) * * *
(i) No landowner notice is required
for replacements which would have
been done under § 2.55 of this chapter
but for the fact that the replacement
facilities are not of the same capacity as
long as they meet the location
requirements of § 2.55(b)(1)(ii) of this
chapter and do not cause any ground
disturbance; or any replacement done
for safety, DOT compliance,
environmental, or unplanned
maintenance reasons that are not
foreseen and that require immediate
attention by the certificate holder.
*
*
*
*
*
PART 380—REGULATIONS
IMPLEMENTING THE NATIONAL
ENVIRONMENTAL POLICY ACT
7. The authority citation for Part 380
continues to read as follows:
■
Authority: 42 U.S.C. 4321–4370h, 7101–
7352; E.O. 12009, 3 CFR 1978 Comp., p. 142.
8. In § 380.15, redesignate paragraphs
(c), (d), (e), and (f) as paragraphs (d), (e),
■
E:\FR\FM\04DER1.SGM
04DER1
Federal Register / Vol. 78, No. 233 / Wednesday, December 4, 2013 / Rules and Regulations
(f), and (g) and add new paragraph (c)
to read as follows:
§ 380.15 Siting and maintenance
requirements.
*
*
*
*
*
(c) Landowner notification. (1) No
maintenance activity that involves
ground disturbance is authorized unless
a company makes a good faith effort to
notify in writing each affected
landowner, as noted in the most recent
county/city tax records as receiving the
tax notice, whose property will be
crossed or used as a result of the
proposed activity, at least five days
prior to commencing any activity under
this section. For an activity required to
respond to an emergency, the five-day
prior notice period does not apply. The
notification shall include at least:
(i) A brief description of the activity
and the effect the activity may have on
the landowner’s property;
(ii) The name and phone number of a
company representative who is
knowledgeable about the project; and
(iii) A description of the
Commission’s Dispute Resolution
Division Helpline, which an affected
person may contact to seek an informal
resolution of a dispute as explained in
section 1b.21(g) of the Commission’s
regulations (18 CFR 1b.21(g)) and the
Dispute Resolution Division Helpline
number.
(2) ‘‘Affected landowners’’ include
owners of property interests, as noted in
the most recent county/city tax records
as receiving tax notice, whose property
is directly affected (i.e. crossed or used)
by the proposed activity, including all
rights-of-way, facility sites (including
compressor stations, well sites, and all
above-ground facilities), access roads,
pipe and contractor yards, and
temporary work space.
*
*
*
*
*
[FR Doc. 2013–28548 Filed 12–3–13; 8:45 am]
BILLING CODE 6717–01–P
DEPARTMENT OF THE TREASURY
Financial Crimes Enforcement Network
31 CFR Part 1010
wreier-aviles on DSK5TPTVN1PROD with RULES
RIN 1506–AB20
Definitions of Transmittal of Funds and
Funds Transfer
Financial Crimes Enforcement
Network (‘‘FinCEN’’), Department of the
Treasury; Board of Governors of the
Federal Reserve System (‘‘Board’’).
ACTION: Final rule.
AGENCY:
VerDate Mar<15>2010
13:12 Dec 03, 2013
Jkt 232001
The Financial Crimes
Enforcement Network, a bureau of the
Department of the Treasury, and the
Board of Governors of the Federal
Reserve System are issuing this Final
Rule amending the regulatory
definitions of ‘‘funds transfer’’ and
‘‘transmittal of funds’’ under the
regulations implementing the Bank
Secrecy Act (‘‘BSA’’). We are amending
the definitions to maintain their current
scope in light of changes to the
Electronic Fund Transfer Act, which
will avoid certain currently covered
transactions being excluded from BSA
requirements.
DATES: Effective Date: This rule is
effective January 3, 2014.
FOR FURTHER INFORMATION CONTACT:
FinCEN: The FinCEN Resource Center
at (800) 949–2732.
Board: Koko Ives, Manager, BSA/AML
Compliance Section, (202) 973–6163,
Division of Banking Supervision and
Regulation, or Clinton Chen, Attorney,
(202) 452–3952, Legal Division. For the
hearing impaired only,
Telecommunication Device for the Deaf
(TDD), (202) 263–4869.
SUPPLEMENTARY INFORMATION:
SUMMARY:
I. Statutory Provisions
The Currency and Foreign
Transactions Reporting Act of 1970, as
amended by the USA PATRIOT Act of
2001 and other legislation, which
legislative framework is commonly
referred to as the ‘‘BSA,’’ 1 authorizes
the Secretary of the Treasury
(‘‘Secretary’’) to require financial
institutions to keep records and file
reports that ‘‘have a high degree of
usefulness in criminal, tax, or regulatory
proceedings, or in the conduct of
intelligence or counterintelligence
activities, including analysis, to protect
against international terrorism.’’ 2 The
Secretary has delegated to the Director
of FinCEN the authority to implement,
administer, and enforce compliance
with the BSA and associated
regulations.3
The BSA was amended by the
Annunzio-Wylie Anti-Money
Laundering Act of 1992 (Pub. L. 102–
550) (‘‘Annunzio-Wylie’’). AnnunzioWylie authorizes the Secretary and the
Board to issue joint regulations
requiring insured banks to maintain
records of domestic funds transfers.4 In
1 The BSA is codified at 12 U.S.C. 1829b and
1951–1959, 18 U.S.C. 1956, 1957, and 1960, and 31
U.S.C. 5311–5314 and 5316–5332 and notes thereto,
with implementing regulations at 31 CFR Chapter
X. See 31 CFR 1010.100(e).
2 31 U.S.C. 5311.
3 Treasury Order 180–01 (Sept. 26, 2002).
4 12 U.S.C. 1829b(b)(2) (2006). Treasury has
independent authority to issue regulations requiring
PO 00000
Frm 00023
Fmt 4700
Sfmt 4700
72813
addition, Annunzio-Wylie authorizes
the Secretary and the Board to issue
joint regulations requiring insured
banks and certain nonbank financial
institutions to maintain records of
international funds transfers and
transmittals of funds.5 Annunzio-Wylie
requires the Secretary and the Board, in
issuing regulations for international
funds transfers and transmittals of
funds, to consider the usefulness of the
records in criminal, tax, or regulatory
investigations or proceedings, and the
effect of the regulations on the cost and
efficiency of the payments system.6
The Electronic Fund Transfer Act
(‘‘EFTA’’) 7 was enacted in 1978 to
establish the rights and liabilities of
consumers as well as the
responsibilities of all participants in
electronic fund transfer activities. The
EFTA is implemented by Regulation E,
which sets up the framework that
establishes the rights, liabilities, and
responsibilities of participants in
electronic fund transfer systems.8
Section 1073 of the Dodd-Frank Wall
Street Reform and Consumer Protection
Act (‘‘Dodd-Frank Act’’),9 added a new
section 919 to the EFTA, creating a
comprehensive new system of consumer
protections for remittance transfers sent
by consumers in the United States to
individuals and businesses in foreign
countries. Because the new section 919
of the EFTA defines ‘‘remittance
transfers’’ broadly, most electronic
transfers of funds sent by consumers in
the United States to recipients in other
countries will be subject to the new
protections.
II. Background Information
A. Current Regulations Regarding Funds
Transfers and Transmittals of Funds
On January 3, 1995, FinCEN and the
Board jointly issued a rule that requires
banks and nonbank financial
institutions to collect and retain
information on certain funds transfers
and transmittals of funds
(‘‘recordkeeping rule’’).10 At the same
nonbank financial institutions to maintain records
of domestic transmittals of funds.
5 12 U.S.C.1829b(b)(3) (2006).
6 Id. As discussed later in this Federal Register
notice, the final rule would have no effect on the
current scope of or substantive requirements in BSA
regulations and thus no effect on the cost or
efficiency of the payment systems.
7 15 U.S.C. 1693 et seq.
8 12 CFR part 1005.
9 Public Law 111–203, 124 Stat. 1376, section
1073 (2010).
10 31 CFR 1020.410(a) (recordkeeping
requirements for banks); 31 CFR 1010.410(e)
(recordkeeping requirements for nonbank financial
institutions). The Board revised its Regulation S (12
CFR part 219) to incorporate by reference the
E:\FR\FM\04DER1.SGM
Continued
04DER1
]]>Agencies
[Federal Register Volume 78, Number 233 (Wednesday, December 4, 2013)]
[Rules and Regulations]
[Pages 72794-72813]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-28548]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Parts 2, 157, and 380
[Docket Nos. RM12-11-000 and RM12-11-001; Order No. 790]
Revisions to Auxiliary Installations, Replacement Facilities, and
Siting and Maintenance Regulations
AGENCY: Federal Energy Regulatory Commission, DOE.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Federal Energy Regulatory Commission (Commission) is
issuing this Final Rule to amend its regulations to clarify that
auxiliary installations added to existing or proposed interstate
transmission facilities under the Commission's regulations must be
located within the authorized right-of-way or facility site for the
existing or proposed facilities and use only the same temporary work
space that was or will be used to construct the existing or proposed
facilities; and to codify the common industry practice of notifying
landowners prior to coming onto their property to install auxiliary or
replacement facilities, certain replacements, or conduct maintenance
activities.
DATES: This rule is effective February 3, 2014.
FOR FURTHER INFORMATION CONTACT:
Gordon Wagner, Office of the General Counsel, Federal Energy Regulatory
Commission, 888 First Street NE., Washington, DC 20426 (202) 502-8947,
gordon.wagner@ferc.gov.
Katherine Liberty, Office of the General Counsel, Federal Energy
Regulatory Commission, 888 First Street NE., Washington, DC 20426 (202)
502-6491, katherine.liberty@ferc.gov.
Douglas Sipe, Office of Energy Projects, Federal Energy Regulatory
Commission, 888 First Street NE., Washington, DC 20426 (202) 502-8837,
douglas.sipe@ferc.gov.
Howard Wheeler, Office of Energy Projects, Federal Energy Regulatory
Commission, 888 First Street NE., Washington, DC 20426 (202) 502-8688,
howard.wheeler@ferc.gov.
SUPPLEMENTARY INFORMATION:
145 FERC ] 61,154
United States of America
Federal Energy Regulatory Commission
Revisions to Auxiliary Installations, Replacement Facilities, and
Siting and Maintenance Regulations
Docket Nos. RM12-11-000; RM12-11-001
Order No. 790
Final Rule
Table of Contents
------------------------------------------------------------------------
Paragraph Nos.
------------------------------------------------------------------------
I. Background........................................ 2
A. Request for Clarification of Section 2.55(a) 8
of the Commission's Regulations.................
B. Notice of Proposed Rulemaking (NOPR).......... 9
II. Discussion....................................... 12
A. Section 2.55(a) Auxiliary Facilities.......... 12
1. Commission Jurisdiction................... 13
2. Section 2.55 Siting and Construction 17
Limitations.................................
3. Environmental Issues...................... 40
4. Compliance with Executive Orders.......... 43
5. Section 2.55 Authorization and Part 157, 45
Subpart F, Blanket Authorization............
6. ``Grandfathering'' Existing Section 49
2.55(a) Installations.......................
7. Burden of Section 2.55's Right-of-Way 51
Requirement.................................
B. Landowner Notification........................ 54
1. Jurisdictional Basis and Need for 58
Landowner Notification......................
[[Page 72795]]
2. Exceptions to Landowner Notification 62
Requirements................................
3. Part 157 Landowner Notification Exemption 64
for Replacement Projects....................
4. Requirement that Notification Inform 65
Landowners of the Availability of the
Commission's Dispute Resolution Division....
5. Landowner Notification for Maintenance 68
Activities..................................
6. Burden Resulting from Notification 73
Requirement.................................
III. Information Collection Statement................ 80
IV. Environmental Analysis........................... 88
V. Regulatory Flexibility Act........................ 89
VI. Document Availability............................ 92
VII. Effective Date and Congressional Notification... 95
------------------------------------------------------------------------
145 FERC ] 61,154
United States of America
Federal Energy Regulatory Commission
Before Commissioners: Jon Wellinghoff, Chairman; Philip D. Moeller,
John R. Norris, Cheryl A. LaFleur, and Tony Clark.
Revisions to Auxiliary Installations, Replacement Facilities, and
Siting and Maintenance Regulations
Docket Nos. RM11-12-000; RM11-12-001
Order No. 790
Final Rule
(Issued November 22, 2013)
1. The Federal Energy Regulatory Commission (Commission) is issuing
this Final Rule to amend its regulations to (1) clarify that auxiliary
installations added to existing or proposed interstate transmission
facilities under section 2.55 of the regulations \1\ must be located
within the authorized right-of-way or facility site for the existing or
proposed facilities and use only the same temporary work space that was
or will be used to construct the existing or proposed facilities; and
(2) codify the common industry practice of notifying landowners prior
to coming onto their property to install auxiliary or replacement
facilities under section 2.55; certain replacements under Part 157,
Subpart F; or conduct maintenance activities under section 380.15.
---------------------------------------------------------------------------
\1\ 18 CFR 2.55 (2013).
---------------------------------------------------------------------------
I. Background
2. Section 7(c)(1)(A) of the Natural Gas Act (NGA) requires a
natural gas company to have certificate authorization for the
``construction or extension of any facilities.'' \2\ To ``avoid the
filing and consideration of unnecessary applications for
certificates,'' \3\ i.e., to save the time and expense that would
otherwise be expended by companies and the Commission in undertaking a
full, formal NGA section 7 certificate proceeding for every
modification to an authorized system, the Commission added section 2.55
to its regulations.\4\ Section 2.55 establishes that for the purposes
of section 7(c), ``the word facilities as used therein shall be
interpreted to exclude'' auxiliary and replacement facilities.\5\ Thus,
while an auxiliary or replacement facility that qualifies for purposes
of section 2.55 remains subject to the Commission's NGA jurisdiction,
it does not require an individual, facility-specific section 7(c)
certificate authorization.
---------------------------------------------------------------------------
\2\ 15 U.S.C. 717f(c)(1)(A) (2012).
\3\ Filing of Applications for Certificates of Public
Convenience and Necessity, Notice of Proposed Rulemaking, NOPR, 13
FR 6253, at 6254 (October 23, 1948).
\4\ Section 2.55 went into effect in 1949. The Commission
subsequently considered expanding section 2.55, but stated that
although it ``recognizes the desirability of dealing with minor
installations on a practical basis,'' it would not rely on section
2.55 because of ``doubts that the Natural Gas Act authorizes it to
further expand its rule excluding certain facilities from the
certification requirements''; instead the Commission ``recommended
to the Congress that it be given such authority'' to ``permit[]
greater flexibility in its procedures with respect to rate filings
and certification of natural-gas facilities.'' Amending the
Commission's General Rules and Regulations, Order No. 185, 15 FPC
793, at p. 794 (1956). Such authority was not forthcoming. In an
effort to forego issuing an individual certificate authorization in
advance of every single jurisdictional action, the Commission
provided for companies to file a single certificate application
under section 157.6 that ``covered in general outline along the
lines of a budget estimate the proposed routine construction
intended to be undertaken by it during the current or ensuing fiscal
year,'' describing the facilities, costs, capacity, purpose,
construction schedule, customers affected, effects on gas supply,
rates, service, etc. Id. The Commission added section 2.58 to its
regulations for these ``budget-type'' certificate applications, see
Gas Purchase Facilities--Budget-Type Certificate Applications, Order
No. 247, 27 FPC 1119 (1962). These regulations were removed in 1982
when the blanket certificate program was instituted, which offered
companies a streamlined means to obtain certificate authorization
for a limited set of routine and well understood facilities.
Interstate Pipeline Certificates for Routine Transactions, Order No.
234, 47 FR 24254 (June 4, 1982), FERC Stats. & Regs., Regulations
Preambles 1982-1985 ] 30,368 (1982), order on reh'g, Order No. 234-
A, 47 FR 38871 (September 3, 1982), FERC Stats. & Regs., Regulations
Preambles 1982-1985 ] 30,389 (1982), amended by, Sales and
Transportation by Interstate Pipelines and Distributors; Expansion
of Categories of Activities Authorized Under Blanket Certificate,
Order No. 319, 48 FR 34875 (August 1, 1983), FERC Stats. & Regs.,
Regulations Preambles 1982-1985 ] 30,479 (1983). The scope of the
blanket-eligible facilities has been expanded several times since
1982. See, e.g., Revisions to the Blanket Certificate Regulations
and Clarification Regarding Rates, Order No. 686, 71 FR 63680
(October 31, 2006), FERC Stats. & Regs. ] 31,231 (2006), order on
reh'g and clarification, Order No. 686-A, 72 FR 37431 (July 10,
2007), FERC Stats. & Regs. ] 31,249 (2007), order on reh'g, Order
No. 686-B, 72 FR 54818 (September 27, 2007), FERC Stats. & Regs. ]
31,255 (2007).
\5\ 18 CFR 2.55 (2013).
---------------------------------------------------------------------------
3. Facilities that qualify under section 2.55(a) must be ``merely
auxiliary or appurtenant to an authorized or proposed pipeline
transmission system'' and installed ``only for the purpose of obtaining
more efficient or more economical operation of the authorized or
proposed transmission facilities,'' such as ``[v]alves; drips; pig
launchers/receivers; yard and station piping; cathodic protection
equipment; gas cleaning, cooling and dehydration equipment; residual
refining equipment; water pumping, treatment and cooling equipment;
electrical and communication equipment; and buildings.'' \6\
---------------------------------------------------------------------------
\6\ Id. 2.55(a)(1). But for the inclusion of pig launchers/
receivers in 1999, this list has remained unaltered since section
2.55 was put in place in 1949. Note that if a pipeline company wants
to install any facilities specifically named in section 2.55(a)(1),
but will not be installing them only for the purpose of obtaining
more efficient or more economical operation of existing or proposed
interstate transmission facilities, then the company cannot rely on
section 2.55(a). See, e.g., Algonquin Gas Transmission Company
(Algonquin), 57 FERC ] 61,052 (1991), in which the Commission found
a company's reliance on section 2.55(a) to install an air
stabilization unit was unwarranted because the unit was necessary
for the company to meet the terms of its service agreements and
comply with safety requirements, and thus was not only for the
purpose of obtaining more efficient or more economical operation of
its transmission facilities. See also West Texas Gas, Inc., 62 FERC
] 61,039 (1993), in which the Commission found section 2.55(a) did
not apply to facilities constructed to interconnect with another
pipeline because the purpose of the interconnect was to enable the
company to gain access to cheaper sources of gas, and thus was not
only for the purpose of obtaining more efficient or more economical
operation of its transmission facilities and Natural Gas Pipeline
Company of America, 114 FERC ] 61,061, at n.4 (2006), in which the
Commission rejected a company's effort to employ section 2.55(a) to
undertake well recompletions in a storage reservoir, ``because the
construction is designed to provide incremental storage capacity
rather than to maintain the current level of service for existing
customers,'' and consequently required the company to obtain case-
specific authorization for the recompletions (the company was
permitted to rely on section 2.55(a) to make other modifications to
its storage facility, including adding station piping, header and
isolation valves with blowdowns, control valves, gas coolers, a
transformer, field inlet separation facilities, and pigging
equipment).
---------------------------------------------------------------------------
[[Page 72796]]
4. Originally, natural gas companies were not required to notify
the Commission in advance of construction under section 2.55(a).
However, in 1999 the Commission determined that when companies plan to
add auxiliary facilities to a project that has already been authorized,
but not yet completed, or to a project for which authorization is still
pending, prior notification to the Commission is needed in order to
afford the Commission the opportunity to assess the auxiliary
facilities' environmental impacts, impacts which, when combined with
the impacts of the construction and operation of the facilities that
will be augmented by the auxiliary facilities, could potentially alter
the Commission's conclusions regarding the overall environmental impact
of the project.
5. As a result, Order No. 603 \7\ revised section 2.55(a)(2) to
require that if a company plans to rely on section 2.55 to construct
auxiliary facilities in conjunction with: (1) A project for which case-
specific certificate authority has already been received but which is
not yet in service, (2) a proposed project for which a case-specific
certificate application is pending, or (3) facilities that will be
constructed subject to the prior notice provisions of the Part 157,
Subpart F blanket certificate regulations, then the company must
provide a description of the auxiliary facilities and their location to
the Commission at least 30 days in advance of their installation.\8\ In
the case of auxiliary facilities that will be constructed in
conjunction with a project for which an application under Part 157,
Subpart A for case-specific certificate authority is pending, the
auxiliary facilities must be described in the application's
environmental report, as required by section 380.12 of the Commission's
regulations, or in a supplemental filing while the application is
pending.\9\ The Commission explained these advance notification
requirements are necessary in order to afford the Commission time to
include the environmental impacts of the auxiliary facilities as part
of its environmental review of the project.\10\
---------------------------------------------------------------------------
\7\ Revisions of Existing Regulations Under Part 157 and Related
Sections of the Commission's Regulations Under Natural Gas Act,
Order No. 603, 64 FR 26572, at 26574 (May 14, 1999), FERC Stats. &
Regs., Regulations Preambles July 1996-December 2000 ] 31,073
(1999), order on reh'g, Order No. 603-A, 64 FR 54522 (October 7,
1999), FERC Stats. & Regs., Regulations Preambles July 1996-December
2000 ] 31,081 (1999), order on reh'g, Order No. 603-B, 65 FR 11,462
(March 3, 2000), FERC Stats. & Regs., Regulations Preambles July
1996-December 2000 ] 31,094 (2000).
\8\ See 18 CFR 2.55(a)(2)(ii) (2013).
\9\ See 18 CFR 2.55(a)(2)(iii) (2013). In the case of auxiliary
facilities to be constructed in conjunction with a proposed project
for which an application for case-specific certificate authority is
pending, section 2.55(a)(2)(iii) requires that the applicant
describe the auxiliary facilities in the application's section
380.12 Resource Report 1--General Project Description. Section
380.12(c)(1) requires the applicant to describe and provide location
maps for ``all jurisdictional facilities, including all aboveground
facilities associated with the project (such as: meter stations, pig
launchers/receivers, valves), to be constructed, modified,
abandoned, replaced, or removed, including related construction and
operational support activities and areas such as maintenance bases,
staging areas, communications towers, power line, and new access
roads (roads to be built or modified).'' Section 380.12(c)(2)
requires that the applicant's Resource Report 1 identify and
describe ``all nonjurisdictional facilities, including auxiliary
facilities, that will be built in association with the project,
including facilities to be built by other companies.'' If a company
with a pending application for case-specific certificate authority
determines that it will also need to construct auxiliary facilities,
section 2.55(a)(2)(iii) requires that the applicant make a
supplemental filing describing the auxiliary facilities while the
application is pending.
\10\ Revisions to Regulations Governing NGPA Section 311
Construction and the Replacement of Facilities, Order No. 544, 57 FR
46,487 (October 9, 1992), FERC Stats. & Regs., Regulations Preambles
January 1991-June 1996 ] 30,951 (1992), order on reh'g, Order No.
544-A, 58 FR 57730 (October 27, 1993), FERC Stats. & Regs.,
Regulations Preambles January 1991-June 1996 ] 30,983 (1993).
---------------------------------------------------------------------------
6. Section 2.55(b) permits companies to replace facilities that are
or will soon be physically deteriorated or obsolete, so long as doing
so will not result in a reduction or abandonment of service and the
replacement facilities will have a substantially equivalent designed
delivery capacity.\11\ Section 2.55(b) replacement projects can go
forward without case-specific or blanket certificate authorization.
Further, the 30-day prior notice requirement in section 2.55(b)(2) for
more expensive replacement projects only requires notice to the
Commission, not landowners.\12\
---------------------------------------------------------------------------
\11\ 18 CFR 2.55(b) (2013).
\12\ The requirement that a company give at least 30 days prior
notice to the Commission before commencing a replacement project
applies if the project will exceed the current cost limit for
projects automatically authorized under the Part 157 blanket
certificate regulations. However, unlike the blanket certificate
regulations, section 2.55 places no cost limits on auxiliary
installations or replacement projects that qualify under that
section.
---------------------------------------------------------------------------
7. In Order No. 603 the Commission specified that all replacement
facilities must be constructed within the previously authorized right-
of-way or facility site for the existing facilities and use the same
temporary work spaces used for construction of the existing
facilities.\13\ The Commission reasoned that section 2.55(b)
replacements ``should only involve basic maintenance or repair to
relatively minor facilities,'' where it has been determined that no
significant impact to the environment would occur.\14\ The Commission
suggested that in situations where a company wants to use land outside
previously authorized areas, it may be able to rely on its blanket
certificate authority rather than 2.55(b) to undertake the project.\15\
---------------------------------------------------------------------------
\13\ Order No. 603, 64 FR 26572 at 26574-76, FERC Stats. & Regs.
] 31,073 and 18 CFR 2.55(b) (2013).
\14\ Order No. 603-A, 64 FR 54522 at 54524, FERC Stats. & Regs.
] 31,081.
\15\ Order No. 603, 64 FR 26572 at 26580, FERC Stats. & Regs. ]
31,073.
---------------------------------------------------------------------------
A. Request for Clarification of Section 2.55(a) of the Commission's
Regulations
8. On April 2, 2012, the Interstate Natural Gas Association of
America (INGAA) requested clarification regarding the installation of
auxiliary facilities under section 2.55(a) of the Commission's
regulations.\16\ INGAA maintained that Commission staff had stated in
discussions with pipeline representatives and in industry meetings that
companies undertaking section 2.55(a) auxiliary installations to
augment existing facilities that are already in service must stay
within the right-of-way or facility site for the existing facilities
and restrict construction activities to previously used work spaces.
INGAA disagreed with these constraints, arguing that section 2.55(a)
activities had not been limited in this way in the past, and that
Commission staff's position amounted to rulemaking without the
opportunity for notice and comment, contrary to the requirements of the
Administrative Procedure Act (APA).\17\ Pursuant to section
385.207(a)(4) of the Commission's Rules of Practice and Procedure,
INGAA requested that the Commission confirm INGAA's view that the
right-of-way and work space constraints stated by staff do not apply to
section 2.55(a) auxiliary installations.
---------------------------------------------------------------------------
\16\ On May 2, 2012, MidAmerican Energy Pipeline Group (which
includes Kern River Gas Transmission Company and Northern Natural
Gas Company) filed a motion to intervene and comments in support of
INGAA's petition.
\17\ 5 U.S.C. 553 (2012).
---------------------------------------------------------------------------
[[Page 72797]]
B. Notice of Proposed Rulemaking (NOPR)
9. On December 20, 2012, the Commission issued a NOPR proposing to
revise its regulations to clarify that, as with replacement projects
under section 2.55(b), all auxiliary installation projects must take
place within a company's authorized right-of-way or facility site and
use only previously approved work spaces. In addition, the NOPR
proposed to add a 10-day landowner notification requirement for section
2.55 auxiliary and replacement facilities and for section 380.15
maintenance activities.\18\ Timely comments on the NOPR were submitted
by INGAA; \19\ Golden Triangle Storage, Inc. (Golden Triangle);
MidAmerican Energy Pipeline Group (MidAmerican Energy); Southern Star
Central Gas Pipeline, Inc. (Southern Star); National Fuel Supply
Corporation and Empire Pipeline, Inc. (National Fuel); and WBI Energy
Transmission, Inc. (WBI Energy). Golden Triangle, MidAmerican Energy,
Southern Star, and WBI Energy support INGAA's comments.
---------------------------------------------------------------------------
\18\ Revisions to Auxiliary Installations, Replacement
Facilities, and Siting and Maintenance Regulations, NOPR, 78 FR 679,
683 (January 4, 2013), FERC Stats. & Regs. ] 32,696 (2012) (cross-
referenced at 141 FERC ] 61,228 (2012)). While section 380.15 covers
siting, construction, and maintenance, our existing regulations
already have notification requirements in place applicable to siting
and construction; consequently, the additional prior notice
requirement described in the new section 380.15(c) will apply
exclusively to maintenance activities.
\19\ On January 22, 2013, INGAA made a filing styled as a
request for rehearing of the NOPR, and on March 5, 2013, it filed
comments on the NOPR. INGAA argues the NOPR functioned as a Final
Rule by giving immediate effect to a change in the regulations
without providing affected entities notice and an opportunity to
comment. We do not believe the NOPR's clarification concerning
section 2.55(a) effected any change; rather, it articulated
existing, long-standing constraints and obligations with respect to
auxiliary installations. Because the NOPR does not constitute an
instant Final Rule, we find no cause to consider requests for
rehearing of the NOPR. Nevertheless, we will accept INGAA's request
for rehearing and treat it as comments in response to the NOPR.
Thus, regardless of the distinction between INGAA's and the
Commission's characterization of the NOPR, the concerns INGAA raises
in both of its submissions will be addressed herein. We will
identify INGAA's self-styled request for rehearing as January 2013
Comments and its subsequent submission as March 2013 Comments.
---------------------------------------------------------------------------
10. The commentors object to the Commission's position that
auxiliary installations to enhance existing facilities must be located
within the previously authorized areas for the existing facilities,
arguing the Commission has not heretofore imposed such a limitation on
the siting or construction of auxiliary facilities.
11. The commentors also oppose the NOPR's proposed new requirement
that companies give prior notice to affected landowners before
commencing construction of auxiliary or replacement facilities under
section 2.55 of the regulations or maintenance activities under section
380.15 of the regulations. Although the commentors do not dispute the
Commission's position in the NOPR that it is appropriate to give
landowners prior notice to the extent practicable in order to minimize
inconvenience to landowners, the commentors contend the proposed notice
procedures described in the NOPR (1) are unnecessary, noting that some
companies already comply with the spirit of this stipulation, and (2)
are impractical, particularly with respect to urgent or unanticipated
maintenance activities.
II. Discussion
A. Section 2.55(a) Auxiliary Facilities
12. In this Final Rule, the Commission revises its regulations, as
proposed in the NOPR, to clarify that all section 2.55(a) auxiliary
installations added to existing or proposed interstate transmission
facilities must be located within the authorized right-of-way or
facility site for the existing or proposed facilities and use only the
same temporary work space that was or will be used to construct the
existing or proposed facilities.
1. Commission Jurisdiction
13. INGAA argues that section 2.55(a) can be distinguished from
section 2.55(b) on the grounds that auxiliary facilities are not needed
to provide certificated services, and therefore are not jurisdictional,
while replacement facilities are essential to provide certificated
services, and therefore are jurisdictional. We disagree. Although
section 2.55 states that ``for purposes of section 7(c) of the Natural
Gas Act, as amended, the word facilities as used therein shall be
interpreted to exclude'' auxiliary and replacement facilities,\20\ the
Commission's choice of wording in drafting this section cannot change
the fact that section 2.55(a) auxiliary facilities and section 2.55(b)
replacement facilities nevertheless are jurisdictional facilities for
purposes of section 7 of the NGA. It went without saying in 1949, and
has largely gone without saying since, that all section 2.55 facilities
are subject to the Commission's jurisdiction. This is obvious with
respect to replacements, since the new facilities step into the shoes
of the aging facilities they replicate, and so assume the replaced
facilities' jurisdictional status. Section 2.55(a) auxiliary
installations are also jurisdictional, comprising that category of
facilities that enable companies to operate existing or proposed
jurisdictional facilities more efficiently or economically. All section
2.55 facilities are integrated into a larger interstate transmission
system and serve no function other than to enable that system to
perform its jurisdictional functions more efficiently or economically;
just as the larger system is jurisdictional, the component parts of
that system, including auxiliary facilities installed pursuant to
section 2.55, are jurisdictional as well.\21\
---------------------------------------------------------------------------
\20\ Hence the title of section 2.55, Definition of terms used
in section 7(c), and the placement of section 2.55 in Part 2,
General Policy and Interpretations.
\21\ If facilities are installed in reliance on section 2.55,
but do not meet the criteria of this section, then they are
jurisdictional facilities installed without the requisite Commission
certificate authorization. For example, in Algonquin, after finding
facilities installed under color of section 2.55(a) did not qualify
under that section, we directed the company to show cause ``why it
did not violate and is not violating section 7(c) of the Natural Gas
Act by constructing and operating [facilities] without obtaining a
certificate from the Commission.'' 57 FERC ] 61,052, at 61,205-06.
The company subsequently obtained case-specific certificate
authorization for the facilities at issue in Boston Gas Company, 70
FERC ] 61,122, Ordering Paragraph (F) (1995).
---------------------------------------------------------------------------
14. INGAA states that the NGA mandates that any jurisdictional
facility must be certificated. We concur. As we have stated: ``Section
2.55 of the Commission's regulations serves, in effect, as standing
authorization for pipelines to perform periodic maintenance and routine
replacement'' in order to ``permit pipelines to undertake limited
construction projects without waiting for NGA section 7(c) case
specific certificate authorization.'' \22\ In other words, section 2.55
grants automatic certificate authorization for a limited class of
facilities.
---------------------------------------------------------------------------
\22\ Emergency Reconstruction of Interstate Natural Gas
Facilities Under the Natural Gas Act, Notice of Proposed Rulemaking,
68 FR 4120 (January 28, 2003), FERC Stats. & Regs. ] 32,567, at
34,679-80 (2003). In the interest of administrative and industrial
efficiency, we have dismissed requests for case-specific section 7
certificate authorization for facilities that qualified for this
``standing authorization'' provided by section 2.55. For example, in
Columbia Gas Transmission Corporation, 68 FERC ] 61,156, at 61,743
(1994), we dismissed a request for case-specific section 7
certificate authorization to install a pigging and a methanol
injection system after finding that the proposed facilities would
serve only for the purpose of obtaining more efficient or more
economical operation of an authorized transmission system, and thus
qualified as auxiliary facilities that could and should be installed
under section 2.55(a).
---------------------------------------------------------------------------
15. To qualify under section 2.55(a), facilities must serve ``only
for the purpose of obtaining more efficient operation or more
economical operation of the authorized or proposed
[[Page 72798]]
transmission facilities'' (emphasis added).\23\ Therefore, we have
always assumed that section 2.55(a) would necessarily be confined to
projects small enough and inconsequential enough that their
environmental and economic impacts would not merit the close scrutiny
provided by (and time and expense consumed by) case-specific NGA
section 7 review.\24\ Auxiliary facilities installed in reliance on
section 2.55(a) will be added either to existing interstate
transmission facilities that were subject to environmental review prior
to construction or to a proposed project, in which case the applicant
must identify in its certificate application the auxiliary facilities
it plans to install in conjunction with the project, so that the
auxiliary facilities will be included in the review of the project's
environmental impacts.\25\ In the case of section 2.55(b) replacement
facilities, an environmental review was performed prior to construction
of the existing facilities to be replaced,\26\ and the replacement
facilities must be in the same right-of-way and be substantially
equivalent in design capacity to the existing facilities.\27\
---------------------------------------------------------------------------
\23\ Supra n.6.
\24\ The sentiment in Order No. 603-A, 64 FR 54522 at 54524,
FERC Stats. & Regs. ] 31,081, that replacements ``should only
involve basic maintenance or repair to relatively minor facilities
where the Commission has determined that no significant impact to
the environment will occur'' is applicable as well to auxiliary
installations.
\25\ As discussed above, if a company plans to rely on section
2.55(a) to install auxiliary facilities in conjunction with a
project under its Part 157 blanket construction certificate that it
is subject to prior notice, the company must give the Commission
notice of the type and planned location of auxiliary facilities at
least 30 days prior to installation. See 18 CFR 2.55(a)(2)(ii)
(2013).
\26\ In the case of existing facilities constructed pursuant to
blanket certificate authority, the facilities' construction was
subject to the blanket program's section 157.206(b) environmental
compliance provisions.
\27\ For example, if a natural gas company wants to replace a
deteriorated section of 12-inch-diameter pipe with 24-inch-diameter
pipe, it generally cannot rely on section 2.55(b) to undertake such
work, as the use of larger pipe could require larger equipment and
greater ground disturbance and thus raise environmental issues that
were not considered when the12-inch-diameter pipeline was
authorized. In addition, while the replacement of deteriorated
facilities is necessary to maintain existing service levels, section
2.55 does not provide the opportunity for a company's customers to
raise issues regarding the replacement project's cost. Thus,
limiting replacement activities under section 2.55(b) to the
construction of facilities that will be substantially equivalent in
design capacity to the existing facilities is appropriate. If a
company believes that there is a need for the replacement facilities
to have significantly greater capacity, it can undertake the
replacement project under its Part 157, Subpart F blanket
construction certificate program, subject to the regulations' cost
limits and environmental conditions. If the replacement project will
exceed the blanket certificate cost limits or the company cannot
satisfy the blanket certificate regulations' environmental
conditions, the company can file an application for case-specific
certificate authority and initiate a proceeding in which its
customers and other parties can raise any concerns. Note that as
discussed in the NOPR, to account for subsequent modifications
having been made to original facilities--in particular blanket
certificate projects that in adding to or altering original
facilities establish new permanent right-of-way and new temporary
work space--we will revise the section 2.55(b)(1)(ii) requirement
that replacements must be confined to areas authorized for the
``original facility'' to allow for replacements within areas
authorized for the ``existing facility.''
---------------------------------------------------------------------------
16. Since the wording of section 2.55 of the regulations cannot
work to exclude auxiliary and replacement facilities from the scope of
our jurisdiction under NGA section 7, section 2.55 effectively provides
not an NGA-exemption, but a type of ``blanket'' certificate authority,
so that a company does not need to seek additional, specific
certificate authority to add minor auxiliary facilities to its
previously certificated facilities or to replace its previously
certificated facilities. Section 2.55 provides pre-granted or automatic
certificate authorization to a specific, limited set of facilities, and
does so to avoid triggering an unnecessary level of review for certain
minor modifications to an existing or pending interstate transmission
system. Section 2.55 is both a precursor and complement to our Part 157
blanket certificate program. By providing non-case specific certificate
authorization for limited classes of facilities, the section 2.55 and
blanket certificate regulations permit companies to satisfy the
requirements of section 7(c) without having to apply for individual
case-specific certificates for each and every modification to their
systems.
2. Section 2.55 Siting and Construction Limitations
17. In 1994, we first had cause to clarify the parameters of
section 2.55, in response to a request to increase operating pressures
and make other changes to a pipeline system in Arkla Energy Resources
Company (Arkla).\28\ In reviewing the existing facilities, it came to
light that Arkla had undertaken several years before, in reliance on
section 2.55(b), to replace 91 miles of old 18-inch-diameter pipe on a
segment of its system by abandoning it in place and installing new 20-
inch-diameter pipe along a parallel path, which had required widening
the existing right-of-way along portions of the route by an additional
25 feet. We acknowledged that (1) section 2.55(b) did not ``specify
whether replacement facilities must be constructed in the existing
right-of-way,'' and that (2) there was no case law that ``directly
addressed this issue.'' \29\ However, we explained that construction
outside the right-of-way that was studied and authorized for the
existing facilities potentially could have environmental impacts that
had not been included in our environmental review of the facilities
being replaced.\30\ Thus, we clarified that:
---------------------------------------------------------------------------
\28\ 67 FERC ] 61,173 (1994), order on reh'g, NorAm Gas
Transmission Company, 70 FERC ] 61,030 (1995) (Arkla/NorAm). Arkla
was in the process of changing its name to NorAm at the time the
Commission issued its order finding that Arkla's replacement project
did not qualify to go forward under section 2.55(b). Thus, Arkla
sought rehearing under its new name.
\29\ 67 FERC ] 61,173 at 61,516.
\30\ Id.
[S]ection 2.55(b) means that replacement facilities must be
constructed within the existing right-of-way. The reason is simple.
The authority to replace a facility and to establish a right-of-way
should be limited by the terms and locations delineated in the
original construction certificate. Thus, a certificate holder that
later establishes a new right-of-way for purposes of replacement
engages in an unauthorized activity which is outside the parameters
of the original certificate order.\31\
---------------------------------------------------------------------------
\31\ Id. As we noted in Arkla/NorAm, at the time replacement
activities limited to the existing right-of-way were categorically
excluded by section 380.4(24) based on the assumption that impacts
on the environment will be insignificant if construction activities
to replace facilities are limited to work within a pipeline's
existing compressor station yard or right-of-way. Following Arkla/
NorAm, we concluded that even if construction activities will be
confined to the existing right-of-way, there may be the need for
further environmental review if a replacement project involves the
construction of extensive facilities, or there have been changes in
land use over time in the vicinity of the existing facilities (for
example, the existing facilities may have been constructed in an
area that was rural in nature at the time but is now densely
populated), or the pipeline company's replacement project may be
associated with the construction of other, non-jurisdictional
facilities that could also have environmental impacts. We rectified
the situation in Order No. 544, explaining that because we have ``a
responsibility under NEPA to review replacement activities that pose
potentially serious, adverse environmental impact . . . we need to
be informed of such activities before they occur.'' Order No. 544,
57 FR 46487, at 46491 (October 9, 1992); FERC Stats. & Regs. ]
30,951, at 30,686-87 (1992). Thus, while most replacement projects
involve minor facilities and no potential for significant
environmental impacts, we amended section 2.55(b) to require that
companies notify us at least 30 days prior to commencing replacement
projects so that there is time for staff to assess whether the
project needs to be delayed in order to conduct further
environmental review.
18. We subsequently codified this Arkla/NorAm clarification in
Order No. 603 by amending section 2.55(b) to add the phrase ``will be
located in the same right-of-way or on the same site as the facilities
being replaced, and will be constructed using the temporary work space
used to construct the original
[[Page 72799]]
facility.'' \32\ In this rulemaking proceeding, we are clarifying that
this same right-of-way/work space limitation is equally applicable to
auxiliary installations under section 2.55(a). Rather than provide
clarification in a case-specific proceeding, as the Commission did in
Arkla/NorAm, and then revise the regulation in a subsequent rulemaking
proceeding, here we conflate clarification-to-codification for section
2.55(a) into this single proceeding.
---------------------------------------------------------------------------
\32\ Order No. 603, 64 FR 26572 (May 14, 1999), FERC Stats. &
Regs. ] 31,073 (1999). INGAA asserts the NOPR in this proceeding
erroneously stated that the Commission did not address section
2.55(a) auxiliary facilities in Order No. 603 when it revised
section 2.55(b) to limit replacement projects to the originally
authorized rights-of-way and work spaces for the existing
facilities. While, as noted above, Order No. 603 did indeed address
section 2.55(a) auxiliary facilities, specifically adding the
notification requirements of section 2.55(a)(2), Order No. 603 did
not address the right-of-way requirements relating to the
installation of auxiliary facilities because the Commission assumed
that there would be no need for gas companies to go outside
previously authorized or proposed rights-of-way and work spaces in
order to install minor facilities that, as specified in section
2.55(a), are ``merely auxiliary or appurtenant'' to and ``only for
the purpose of obtaining more efficient or more economical operation
of the authorized or proposed transmission facilities.'' We
explained in the NOPR in this proceeding that Order No. 603, as it
pertained to spatial limitations on the construction of facilities,
dealt specifically with replacement facilities, and therefore only
discussed the rationale for requiring section 2.55(b) replacement
facilities to be located within an existing right-of-way. We also
explained that no party raised any issue in the Order No. 603
rulemaking proceeding regarding spatial limitations on the
installation of auxiliary facilities under section 2.55(a), and
therefore we saw no need in Order No. 603 to discuss whether the
construction and location of auxiliary installations to enhance
existing facilities must fall within the same footprint as the
existing facilities. NOPR, FERC Stats. & Regs. ] 32,696 at P 15. The
NOPR also pointed out that nothing in Order No. 603 evinced an
intent to permit auxiliary facilities or auxiliary installation
activities outside of authorized rights-of-way and work spaces. Id.
Thus, although we accept that the NOPR could have provided a more
precise summary of Order No. 603, we reject INGAA's claim that the
NOPR misrepresented Order No. 603, particularly since the NOPR
describes concerns discussed in Order No. 603 with respect to
auxiliary facilities, and recites the resulting revisions made to
section 2.55(a). Id. P 4.
---------------------------------------------------------------------------
19. As in Arkla/NorAm, construction outside the right-of-way could
have environmental impacts that were not included in our environmental
review of the existing facilities. In such circumstances, we could not
fulfill our NEPA responsibilities if we were to allow companies to
continue acquiring additional rights-of-way and work spaces to install
auxiliary facilities under color of section 2.55(a) in areas not
included in the environmental reviews for existing and proposed
transmission facilities. We must ensure that environmental reviews are
performed and appropriate mitigation measures identified, and this NEPA
obligation extends to additional areas landowners may cede to gas
companies for jurisdictional activities or facilities. While the
environmental review conducted by the Commission in a certificate
proceeding encompasses a corridor wider than the right-of-way and
temporary work spaces eventually authorized, land usage and other
circumstances can change over time, particularly in areas in which no
jurisdictional facilities are located, and the Commission's findings
based on its environmental review in a past certificate proceeding may
no longer be valid for the entire corridor originally studied. This
makes it reasonable and necessary to confine all auxiliary facilities
and construction activities under section 2.55 to Commission-authorized
rights-of-way and work spaces.
20. INGAA states that ``[t]he Commission has not been confronted
with issues resulting from auxiliary installations outside an existing
right-of-way similar to the issues that arose in Arkla/NorAm from
replacement facilities.'' \33\ We acknowledge that we are not aware of
any section 2.55(a) auxiliary activities outside the authorized right-
of-way approaching the scale of the section 2.55(b) replacement
activities outside the right-of-way that came to light during the
Arkla/NorAm proceeding.\34\ Nevertheless, the issues raised for
sections 2.55(a) and (b) activities are the same.\35\ We covered these
issues in the NOPR, identifying our principle concern as the absence of
any review of the environmental impacts of activities outside of
authorized areas.
---------------------------------------------------------------------------
\33\ INGAA's January 2013 Comments at p. 15.
\34\ Arkla had made numerous egressions from the existing right-
of-way and acquired significant additional land rights without the
Commission's knowledge in order to widen the existing right-of-way
by 25 feet along significant portions of the 91 miles of pipeline
that was replaced. Arkla had needed the wider right-of-way in order
to use larger-diameter replacement pipe that it laid alongside the
old pipe that was abandoned in place.
\35\ See Arkla 67 FERC ] 61,173 at 61,517-18.
---------------------------------------------------------------------------
21. INGAA emphasizes that ``cathodic protection equipment,''
``electrical and communication equipment,'' ``pig launcher/receivers,''
and ``buildings'' are listed specifically in section 2.55 as examples
of auxiliary installations, and contends these types of facilities
typically extend beyond a pipeline's right-of-way and/or require
additional work space to install.\36\ We do not find these examples
sufficient to preclude our action here. While we understand that the
installation of any particular one of the types of facilities named in
section 2.55(a)(1) may require additional right-of-way or work space,
if this is the case, then that particular facility could not be
installed pursuant to section 2.55(a). There are any number of cathodic
protection equipment, electrical and communication equipment, pig
launcher/receivers, and buildings that have been and can be added
without straying beyond the confines of previously authorized areas,
and such facilities can be installed pursuant to section 2.55(a). As
discussed below, section 2.55(a) will continue to reduce the burden
that would be imposed if every natural gas facility required case-
specific certificate authorization. Our decision to revise our
regulations to explicitly confine section 2.55(a) auxiliary facilities
to Commission-authorized rights-of-way and work spaces is necessary to
clarify industry misinterpretations and to meet our obligations under
NEPA, as discussed above, which cannot be fulfilled if we allow
companies to construct auxiliary facilities in areas outside of
existing rights-of-way. Further, while less convenient, most auxiliary
installation projects that do not qualify under section 2.55(a) because
additional right-of-way or work space is needed can be undertaken by
companies by relying on their Part 157 blanket construction
certificates, subject to those regulations' environmental and cost
conditions. If a company cannot satisfy the blanket certificate
regulations' environmental and cost conditions, it can file an
application to initiate a proceeding for case-specific certificate
authority, during which the Commission will conduct an
[[Page 72800]]
environmental review and identify any appropriate mitigation
measures.\37\
---------------------------------------------------------------------------
\36\ See INGAA's January 2013 Comments at p. 31. In several
instances, commentors describe contemporary cathodic protection
components as often being located outside an established right-of-
way. However, in 1949 when ``cathodic protection equipment'' was
included in section 2.55(a), cathodic protection commonly was
provided by passive systems that rely on the electrical potential
between the pipeline and anode. Such systems require close spacing
between the pipeline and anode, and therefore would likely be placed
within the right-of-way. Thus, the inclusion of cathodic protection
equipment in the list of auxiliary facilities that may qualify for
purposes of section 2.55(a) reflected the fact that, at least in
some instances, additional right-of-way or work space is not needed
to install such equipment. The 1949 inclusion of ``cathodic
protection equipment'' in section 2.55(a) did not anticipate the
impressed current systems commonly used today, which require that
anodes be placed some distance (e.g., 100 meters) from the pipeline,
far beyond the typical width of right-of-way needed or authorized
for laying pipe in the ground. Nonetheless, we note that impressed
current systems which use deep well anode beds, can be set entirely
within the typical width of a right-of-way and can qualify under
section 2.55(a).
\37\ For example, a company that needs a larger right-of-way and
more work space for pig launching equipment will not be able to
install the equipment under its Part 157 blanket certificate if in
the course of performing required surveys an endangered species is
identified. In that case, the company may still be able to go
forward with the project if it files an application for case-
specific certificate authority, depending on the results of the
Commission's environmental review, including the required formal
consultation with the U.S. Fish and Wildlife Service, and whether
adequate mitigation measures to protect the endangered species can
be fashioned.
---------------------------------------------------------------------------
22. Commenters raised specific examples. INGAA, Southern Star, and
National Fuel observe that the list of auxiliary installations includes
``buildings,'' and contend that generally it is not feasible to
construct buildings within the previously authorized right-of-way
containing existing pipeline facilities. They assert that the inclusion
of ``buildings'' in section 2.55(a) therefore is at odds with the
NOPR's position that section 2.55(a) has never authorized the
construction of auxiliary facilities on newly acquired right-of-way.
Obviously, as Southern Star points out, a gas company is not going to
be able to locate a large new headquarters building for hundreds of
personnel within an existing right-of-way authorized for a
pipeline.\38\ However, we do not agree that the inclusion of
``buildings'' in section 2.55(a) implicitly validates companies'
reliance on section 2.55(a) to construct even small buildings such as a
tool shed on newly acquired right-of-way.\39\ While section 2.55(a) can
be relied upon to construct housing for compression, communication,
electrical and other equipment and facilities needed to operate
pipeline systems, section 2.55(a) can only be relied upon when such
structures can be located within existing or proposed rights-of-way or
facilities' site. Just as section 2.55(a) cannot be relied upon to
install auxiliary facilities if a company will need to use a temporary
work space that was not studied during a prior environmental review by
the Commission, section 2.55(a) also is not intended for auxiliary
installations where a gas company's plans include other types of land
use described by INGAA and National Fuel, such as construction of a new
access road or the temporary use of previously undisturbed land to
store pipe, equipment, or machinery. While the commentors point out
that a company generally does not need certificate authority to acquire
the land rights to construct an access road or to store equipment and
machinery, this makes no difference in whether a project qualifies
under section 2.55(a).
---------------------------------------------------------------------------
\38\ Southern Star's Comments at p. 4.
\39\ We note that a new corporate headquarters building is not a
``natural gas facility'' which requires certification under the NGA.
---------------------------------------------------------------------------
23. Our goal is to ensure that the authorization provided by
section 2.55 does not inadvertently work to deprive the Commission of
the opportunity to conduct an environmental review and impose
appropriate mitigation measures in any situation where a natural gas
company's construction activities may have adverse environmental
impacts. Thus, even when all planned auxiliary facilities can be
located entirely within an existing or proposed right-of-way, a project
does not qualify under section 2.55(a) if construction of the auxiliary
facilities will be undertaken in conjunction with other activities,
such as building an access road or clearing and leveling nearby areas
to store materials or equipment, that will occur outside the existing
or proposed right-of-way and use areas that have not been
environmentally reviewed in connection with the past or pending
construction of other jurisdictional facilities. If a pipeline company
plans to disturb any area in the process of constructing auxiliary
facilities that was not or will not be subject to environmental review,
the company must undertake the auxiliary installation under the Part
157 blanket certificate regulations or file an application for case-
specific certificate authority so that the Commission has an
opportunity to conduct an environmental study to consider related
activities in the vicinity of the auxiliary installation activities,
such as construction of an access road or use of land to store
materials or machinery.
24. INGAA also comments on section 2.55(a)'s specification of
``electrical and communication equipment,'' a category that has
expanded enormously since 1949. INGAA states that a communications
tower qualifies as ``electrical and communication equipment'' and
``typically involves erecting a 40-foot-tall, three-leg tower with
associated microwave parabolic dish antennas, . . . may include a self-
contained communications building and backup generation,'' and requires
``a 40-foot by 60-foot area that typically would not fit within a
pipeline's existing right-of-way.'' \40\ While we recognize it is
unlikely the entire footprint of such a communication tower can fit
within the confines of an existing authorized right-of-way or facility
site, as noted above, we find that this example is as an exception to
section 2.55(a) and not characteristic of all electric and
communication equipment, some of which can be installed within an
existing right-of-way. As stated above, we cannot fulfill our NEPA
responsibilities if we allow section 2.55(a) projects to use right-of-
way and work space areas that have not been reviewed for environmental
purposes. We have explained that if a structure is needed to ensure a
company's compliance with current regulations (e.g., safety, security,
or reliability standards), but does not meet section 2.55 right-of-way/
work space requirements, then the company must obtain blanket or case-
specific certificate authorization for the project.
---------------------------------------------------------------------------
\40\ INGAA's January 2013 Comments at p. 31.
---------------------------------------------------------------------------
25. Moreover, the fact that these types of facilities are
specifically listed in section 2.55(a) does not mean that companies can
necessarily rely in all instances on section 2.55(a) to install them.
26. As discussed herein, when companies plan to construct auxiliary
facilities in conjunction with projects for which they need to file
applications under Part 157, Subpart A for case-specific certificate
authority, section 2.55(a)(2)(iii) requires the companies to describe
in the case-specific certificate proceedings any auxiliary facilities
that they plan to install under section 2.55(a) and provide location
maps.\41\ Thus, in a case-specific certificate proceeding, a company
needs to include in the proposed right-of-way and temporary work spaces
for which it seeks certificate authorization any additional areas it
will need to install the planned auxiliary facilities, notwithstanding
that it intends to rely on section 2.55(a) for its authorization to
construct the auxiliary facilities.
---------------------------------------------------------------------------
\41\ See n.9.
---------------------------------------------------------------------------
27. In addition, if a company has already requested or received a
case-specific certificate, or is constructing under its Part 157
blanket certificate subject to those regulations' prior notice
provisions, and decides prior to placing those facilities in service
that it also wants to install auxiliary facilities, then section
2.55(a)(2)(ii) requires that the company give the Commission at least
30 days advance notice so that staff has time to consider any
additional environmental impacts associated with the auxiliary
facilities.\42\ The fact that section 2.55(a)(2)(ii) literally requires
advance notice only if the auxiliary facilities are to be added to
facilities that are not yet in service does not mean that companies can
escape environmental review when they want to add auxiliary facilities
to facilities that are already in
[[Page 72801]]
service. The installation of auxiliary facilities within previously-
established rights-of-way and work spaces will be within the scope of a
completed environmental review and conform to the mitigation measures
resulting from that review, whereas the installation of auxiliary
facilities outside of established rights-of-way or work spaces can
impose unstudied (and thus unmitigated) environmental impacts, which is
why section 2.55(a) and (b) activities must be restricted to rights-of-
way, facility sites, and work spaces that have been reviewed and
approved.
---------------------------------------------------------------------------
\42\ See 18 CFR 2.55(a)(2)(ii) (2103). The advance notification
must include a description of the auxiliary facilities and their
planned location.
---------------------------------------------------------------------------
28. The commentors stress that in Arkla/NorAm and Order No. 603,
the Commission focused its attention on section 2.55(b) and infer from
this that the right-of-way/work space limitation that was explicitly
applied to replacement facilities is implicitly inapplicable to
auxiliary installations. This inference is incorrect. It was companies'
overly expansive reading of section 2.55(b), first noted and addressed
in Arkla/NorAm, which prompted the Commission to revise section 2.55(b)
in Order No. 603 to limit companies' replacement project activities
under that section to the use of existing rights-of-way and previously
disturbed temporary work spaces. We were not aware, at that time, of
companies also relying on section 2.55(a) to go outside previously
authorized areas, in that case in order to add auxiliary facilities to
existing facilities. Thus, when we issued Order No. 603, we had no
reason to lay out our expectations regarding locational requirements as
they pertained to auxiliary installations under section 2.55(a), even
though we were clarifying those requirements with respect to
replacement projects under section 2.55(b).\43\
---------------------------------------------------------------------------
\43\ As WBI Energy observes: ``Section 2.55(b) projects can
involve replacing dozens or even hundreds of miles of pipeline and
transmission service related facilities. Section 2.55(a) auxiliary
installations, on the other hand, are much smaller projects with
limited scope such as pig launchers, valves and cathodic protection
equipment.'' WBI Energy's Comments at p. 5. As we have observed:
``Auxiliary installations and taps generally involve minor
facilities; however, replacement of facilities may involve the
removal and replacement of extensive mainline facilities.'' Interim
Revisions to Regulations Governing Construction to Facilities
Pursuant to NGPA Section 311 and Replacement of Facilities, Order
No. 525, 55 FR 33011 at 33013, FERC Stats. & Regs. ] 30,895 at
31,812 (1990).
---------------------------------------------------------------------------
29. However, over the last several years, we began to receive
anecdotal indications that the industry might be applying an
unwarrantedly expansive interpretation to section 2.55(a).\44\ In
response, Commission staff--in conferences, meetings, and other public
and private settings--sought to remind the industry that auxiliary
installations, like replacement projects, must not stray outside of
authorized rights-of-way and work spaces. While INGAA states that
Commission staff's consistent and insistent stance in this matter
prompted its petition requesting that the Commission disavow staff's
statements, INGAA's request for clarification also serves to highlight
how the industry is improperly interpreting section 2.55(a) to
undertake construction of facilities that do not qualify under that
section because they involve siting the facilities and/or engaging in
construction activities outside of authorized areas.
---------------------------------------------------------------------------
\44\ Commission staff received questions from the industry
inquiring whether it was appropriate to install certain facilities
(including, but not limited to, cathodic protection equipment, pig
launchers, communications equipment) outside of the company's
authorized right-of-way using section 2.55 authority.
---------------------------------------------------------------------------
30. When Arkla/NorAm clarified that section 2.55(b) was restricted
to replacements within the originally authorized right-of-way for the
facilities being replaced, companies complained the Commission was
upending long-held industry expectations and imposing an impractical
constraint. Comments on the NOPR in this proceeding regarding auxiliary
projects under section 2.55(a) recycle the objections presented on
rehearing in Arkla/NorAm, namely: ``the Commission failed to articulate
the reason for its change in policy''; ``the Commission's rationale
underpinning'' its ``clarification is inadequate and inconsistent with
the history and purpose of section 2.55(b)''; the ``clarification is
unduly burdensome because it deprives pipelines of needed flexibility
when repairing mainline facilities'' and ``that less burdensome
alternatives are available''; ``clarification constituted an arbitrary
and capricious action because it will create significant and
unjustifiable regulatory burdens''; and the right-of-way specification
constituted a ``rulemaking which failed to satisfy the notice and
comment procedures of section 533 of the Administrative Procedure
Act.'' \45\
---------------------------------------------------------------------------
\45\ Arkla/NorAm, 70 FERC ] 61,030 at 61,099. Later, when the
Commission proposed to revise the text of section 2.55(b) to
incorporate the Arkla/NorAm clarification, comments emphasized the
impracticality of corralling replacement construction activities
within the originally authorized rights-of-way and workspaces.
---------------------------------------------------------------------------
31. The discussion, rationale, and result in the 1995 Arkla/NorAm
rehearing could serve as our response to the comments on the NOPR. The
Commission's orders in Arkla/NorAm ``aimed at removing any possible
confusion within the industry concerning section 2.55'' \46\ by
responding to the ``mistaken belief '' \47\ that section 2.55 permitted
companies to replace obsolete facilities with new facilities outside
rights-of-ways that were authorized for the facilities being replaced
or to engage in any construction activities outside the existing right-
of-way and previously disturbed work spaces. The clarification provided
by the NOPR in this proceeding was aimed at the same mistaken belief on
the part of some industry members with respect to section 2.55(a). Just
as the Commission explained in Arkla/NorAm that, despite arguments to
the contrary, it had ``not changed its interpretation of what
replacement facilities qualify'' and can be installed under section
2.55(b),\48\ the clarification in the NOPR in this proceeding did not
reflect a change in the Commission's interpretation of what auxiliary
facilities can be installed under section 2.55(a). Thus, we could have
issued an instant Final Rule to codify our clarification of section
2.55(a) without providing notice and opportunity, just as the
Commission has modified section 2.55 several times in the past without
notice and comment when such actions were interpretive in nature.\49\
---------------------------------------------------------------------------
\46\ Id., at 61,100.
\47\ Id.
\48\ Id. 61,099-100.
\49\ In Arkla/NorAm, the Commission noted previous amendments to
section 2.55 that were treated as matters of interpretation, and as
such implemented absent notice or hearing. Arkla/NorAm, 70 FERC ]
61,030 at 61,100 and n.10, citing Order No. 220, 23 FPC 499 (1960)
(including delivery taps as qualifying facilities for purposes of
section 2.55); Order No. 241, 27 FPC 33 (1962) (revising the
description of qualifying replacements for purposes of section
2.55); and Order No. 148-A, 49 FPC 1046, 1047 (1973) (excluding
delivery points). Arkla/NorAm also cited, at n.11, American Mining
Congress v. Mine Safety & Health Admin., 995 F.2d 1106, 1112 (D.C.
Cir. 1993), which describes traits of interpretive rules, to show
these modifications to section 2.55 constituted interpretations
that, consistent with the APA, did not require notice or hearing.
---------------------------------------------------------------------------
32. Until relatively recently, the Commission had always assumed
that companies understood when they relied on section 2.55(a) to add
auxiliary facilities to facilities already in service, the new
auxiliary facilities must be attached or immediately adjacent to the
existing facilities and within the right-of-way authorized for the
existing facilities and no additional right-of-way or work space could
be acquired or used in order to add the auxiliary facilities to the
existing facilities.\50\ As we did in
[[Page 72802]]
Arkla/NorAm for section 2.55(b), we apply ``a common-sense reading'' to
section 2.55(a) and reach the same conclusions as we did with respect
to our prior clarification of section 2.55(b), so that those auxiliary
and replacement activities that qualify for purposes of section 2.55,
and therefore require no additional certificate authority, are
``delineated by the parameters of the certificate'' \51\ authorizing
the transmission facilities that will be made more efficient or
economic by adding auxiliary facilities under section 2.55(a) or be
replaced under section 2.55(b).\52\
---------------------------------------------------------------------------
\50\ See, e.g., Order No. 603-A, 64 FR 54522 at 54523, FERC
Stats. & Regs. ] 31,081: ``Traditionally, Section 2.55 limited the
installation of auxiliary facilities to facilities installed on an
existing transmission system.'' This holds for all section 2.55
facilities (including delivery points and taps during the period
when they were covered under section 2.55), which have always been
additions to or replacements of portions of a larger existing
system, and as such have always been integrated into or substituted
in place of jurisdictional facilities.
\51\ 70 FERC ] 61,030 at 61,100.
\52\ Id.
---------------------------------------------------------------------------
33. Similarly under this common sense reading of section 2.55, we
conclude that ``to the extent that facilities are built outside the
scope of the certificate, such facilities are unauthorized.'' \53\
Thus, if auxiliary facilities are to be added to existing or proposed
interstate transmission facilities, the auxiliary facilities will
qualify for purposes of section 2.55(a) only if they will be located
within the same right-of-way as the transmission facilities \54\ and
construction activities will be limited to the temporary workspaces
authorized for construction of the transmission facilities and conform
to the conditions of the certificate authorizing construction of the
transmission facilities (e.g., all required mitigation measures, such
as erosion control or revegetation protocols, that applied to the case-
specific certificate or Part 157 blanket certificate authority under
which the transmission facilities were constructed).\55\
---------------------------------------------------------------------------
\53\ Id.
\54\ Notice of Proposed Rulemaking, 68 FR 4120, FERC Stats. &
Regs. ] 32,567 at 34,679. See also Emergency Reconstruction of
Interstate Natural Gas Facilities Under the Natural Gas Act, Order
No. 633, 68 FR 31596, at 31598-99 (May 28, 2003); FERC Stats. &
Regs. ] 31,144, at 30,399 (2003).
\55\ The bounds of a section 2.55 facility's authorization
reflect the certificate conditions of the transmission system it
modifies. For example, in Order No. 603-A, 64 FR 54522, FERC Stats.
& Regs ] 31,081, at 30,921-22, the Commission was asked to permit
section 2.55(b) projects to use ``Commission-approved rights-of-way
unrelated to the construction of facilities being replaced'' on the
grounds that ``any existing right-of-way that has already been
disturbed for pipeline construction, has been reviewed'' for
environmental impacts. The Commission rejected this request,
reasoning that ``the existing right-of-way that was used to
construct the original facilities should be sufficient,'' since
replacements ``should only involve basic maintenance or repair to
relatively minor facilities where the Commission has determined that
no significant impact to the environment will occur.'' The
Commission noted that in most instances gas companies would be able
to ``use their blanket certificate authority to perform projects
involving more extensive work that would need additional workspace,
including the use of other unrelated rights-of-way,'' since the
blanket procedures ``would allow for the required additional
environmental scrutiny.''
---------------------------------------------------------------------------
34. INGAA continues to argue that two Commission staff letters--one
from 1984 and another from 1998--support INGAA's position that current
Commission staff has been implementing a change in Commission policy by
telling companies that they cannot rely on section 2.55(a) to construct
auxiliary facilities if they need additional right-of-way or previously
undisturbed areas as work space. As discussed in the NOPR, INGAA
describes the April 1998 letter signed by Commission staff as accepting
a proposed section 2.55(a) installation of cathodic protection
equipment outside the right-of-way for the existing pipeline
facilities.\56\ We note that in December 1997, Commission staff had
issued a letter addressing what appears to be the same proposed
cathodic protection project. In this earlier letter, staff recited the
requisite section 2.55 criterion ``that, consistent with the
Commission's previous determinations regarding 18 CFR Sec. 2.55(b),
facilities constructed under section 2.55(a) must be placed within the
permanent right-of-way.'' \57\ Staff explained in the December 1997
letter that because a portion of the project would be located ``in a
new right-of-way . . . in agricultural soil which was not previously
disturbed by the pipeline construction,'' \58\ the project could not be
installed under section 2.55(a); consequently, staff directed the
company to ``file an application under Section 7 of the Natural Gas Act
for authorization.'' \59\
---------------------------------------------------------------------------
\56\ Letter signed by the Director of the Commission's Office of
Pipeline Regulation, dated April 3, 1998; FERC eLibrary Accession
No. 19980408-0242.
\57\ Letter signed by the Director of the Commission's Office of
Pipeline Regulations, dated December 16, 1997, p. 1 (citing Arkla/
NorAm and Columbia Gas Transmission Corporation, 68 FERC ] 61,173
(1994), FERC eLibrary Accession No. 19971223-0120).
\58\ Id.
\59\ Id.
---------------------------------------------------------------------------
35. Neither the April 1998 follow-up letter cited by INGAA
accepting the cathodic protection installation under section 2.55(a)
nor anything else in the record states where the new facilities
ultimately were located. INGAA assumes that the new equipment was
installed in new right-of-way, since the December 1997 letter describes
the ground beds as being outside the right-of-way. We believe it is as
likely that after receiving staff's 1997 letter, the company determined
that it could locate the ground beds within the same right-of-way
containing the existing pipeline facilities, in which case staff's
December 1997 letter and April 1998 letter are consistent and correct;
otherwise, as we acknowledged in the NOPR, the April 1998 letter did
not reflect Commission policy correctly.\60\
---------------------------------------------------------------------------
\60\ NOPR, FERC Stats. & Regs. ] 32,696 at P 11, n. 18 (cross-
referenced at 141 FERC ] 61,228).
---------------------------------------------------------------------------
36. The 1984 Commission staff letter identified by INGAA stated
that proposed facilities to remove liquid condensate and free water
could qualify as an auxiliary installation for purposes of section
2.55(a) as they would increase the efficiency and enhance the
flexibility of the existing interstate pipeline system without altering
the capacity of the system.\61\ INGAA emphasizes that staff's letter
reached this determination, notwithstanding that the letter's
description of the project indicated that some of the proposed
facilities would be located outside the existing right-of-way. We find
no indication that the location of the new facilities was taken into
account in the one-page, two-paragraph staff letter which focuses
exclusively on whether the new facilities would function, as the
regulation requires, ``only for the purpose of obtaining more efficient
or more economical operation.'' The order's failure to recognize the
site of some the of proposed facilities as outside of the existing
right-of-way appears to have been be an oversight that led to a wrong
result, since locating any of the planned new auxiliary facilities
outside the existing right-of-should have disqualified the project for
purposes of section 2.55(a).
---------------------------------------------------------------------------
\61\ Trunkline Gas Company, Docket No. CP84-394-000, letter
order signed by the Director of the Commission's Office of Pipeline
Regulation, dated May 25, 1984.
---------------------------------------------------------------------------
37. At most, INGAA has identified two instances where Commission
policy may not have been applied correctly. Further, both examples
cited by INGAA were staff letters; neither was a Commission order.
INGAA cannot plausibly argue that these two questionable examples must
be accepted as representing a clear statement of Commission policy,
particularly when INGAA acknowledges it filed its request for
clarification expressly because ``[t]he Staff of the Federal Energy
Regulatory Commission . . . has taken the position in informal
conferences with pipelines and in industry meetings that Section
2.55(a) of the Commission's regulations only applies to auxiliary
installations in existing rights-of-way and where the
[[Page 72803]]
original work space is used,'' \62\ and because it strongly disagrees
with ``Commission Staff's position . . . that the same right-of-way and
work space requirements made expressly applicable to the replacement of
facilities under Section 2.55(b) of the Commission's regulations are
implied requirements of Section 2.55(a).'' \63\ In any event,
regardless of whether some companies have thought they had some
reasonable basis for expecting that construction activities to add
auxiliary facilities to existing facilities can extend outside the
previously authorized areas for the existing facilities,\64\ we cannot
fulfill our NEPA responsibilities if we allow companies to continue
acquiring additional rights-of-way and work spaces to install auxiliary
facilities under color of section 2.55(a) in areas not included in the
environmental reviews for existing and proposed transmission
facilities. We must ensure that environmental reviews are performed and
appropriate mitigation measures identified, and this NEPA obligation
extends to additional areas landowners may cede to gas companies for
jurisdictional activities or facilities.
---------------------------------------------------------------------------
\62\ INGAA's April 2, 2012 Request for Clarification at p. 1,
Docket No. RM12-11-000 (footnote omitted).
\63\ Id.
\64\ INGAA declares that ``[f]or over six decades, the
interstate pipeline industry has considered auxiliary installations
beyond the right-of-way to be acceptable.'' INGAA's January 2013
Comments at p. 36. Echoing objections raised in Arkla/NorAm and
Order No. 603, INGAA adds that our clarification ``represents a sea
change in how the industry will address such installations, thereby
raising costs, limiting efficiencies, and threatening expedited
enhancement of pipeline integrity by making such installations more
difficult to effectuate.'' Id. at 39.
---------------------------------------------------------------------------
38. INGAA and WBI Energy point to the Commission's document titled
Guidance on Repairs to Interstate Natural Gas Pipelines Pursuant to
FERC Regulations (Guidance Document), which states that ``all
replacement facilities must be constructed within the same right-of-
way, compressor station, or other aboveground facility site as the
facility being replaced,'' but does not make a similar statement about
auxiliary installations.\65\ INGAA maintains this omission ``reinforces
the decisions'' made by Commission staff in the above-discussed 1997
and 1984 letters.
---------------------------------------------------------------------------
\65\ See https://www.ferc.gov/industries/gas/gen-info/guidance.pdf, at p. 3 (2005). (An updated Guidance Document was
issued in August 2013).
---------------------------------------------------------------------------
39. We do not share this assessment. The Guidance Document's
summation of section 2.55, while highlighting the need for replacements
to stay within authorized boundaries, does not include any discussion
that would indicate auxiliary installations are intended to be exempt
from this same constraint. The Guidance Document on repairs reflects
the Commission's experience with section 2.55 projects, which is that
the scale and impacts of section 2.55(b) replacement projects (e.g.,
Arkla/NorAm) can far exceed those of section 2.55(a) auxiliary
installations. This is, as explained above, why we saw a need to spell
out the right-of-way/work space restriction for replacements, and why--
until recently--we had not recognized that there apparently is a need
to do the same for auxiliary facilities.
3. Environmental Issues
40. INGAA contends the NOPR was incorrect in suggesting that all
certificated gas facilities have undergone an environmental review
prior to being constructed, because an environmental review was not a
part of the Commission's certificate proceedings until after NEPA's
promulgation in 1969. We acknowledge that NEPA altered the methodology
employed by the Commission to evaluate the environmental impacts of a
proposed project. For example, since NEPA, the Commission's orders
granting applications for construction authorization generally have
included a separate section addressing the potential environmental
impacts of an applicant's proposed reasonable alternatives.\66\
However, the Commission has long recognized that determining whether
proposed facilities are required by the public convenience and
necessity requires that environmental consequences be taken into
account (albeit in a far less methodical and thorough manner), and,
when warranted, that constraints be imposed on projects' location,
construction, and operation. For example, while prior to NEPA the
Commission did not require an applicant to search historical county and
state records to identify old burial sites no longer clearly marked as
we do today, the Commission would not have permitted an applicant to
lay a pipeline across a visible cemetery and any approval for a
pipeline to cross any isolated graves would have been conditioned on
their appropriate relocation.
---------------------------------------------------------------------------
\66\ See Commission Regulations Implementing NEPA, 18 CFR part
380 (2013).
---------------------------------------------------------------------------
41. As the Commission observed in 1990 in adopting the advance
notification requirement for more extensive replacement projects under
section 2.55(b),\67\ when that section was promulgated in 1949 ``there
were fewer pipeline construction projects and the majority of those
projects involved relatively short lengths of small diameter
pipeline.'' \68\ The Commission explained that the advance notification
requirement was needed because over the years ``an integrated and
sophisticated national pipeline gridwork has developed''; and
``[w]hereas replacement of facilities when Sec. 2.55 was adopted could
be assumed to involve minor projects, today, replacement of facilities
could involve hundreds of miles of large diameter pipeline.'' \69\ The
same reasoning holds for auxiliary installations, given the increase in
the number, scale, and potential impacts of section 2.55 activities.
---------------------------------------------------------------------------
\67\ As discussed above, the 30-day advance notification
requirement applies to a replacement project under section 2.55(b)
if project costs will exceed the Part 157 blanket certificate
regulations' current cost limits for projects that qualify under the
those regulations' automatic provision.
\68\ Interim Revisions to Regulations Governing Construction of
Facilities Pursuant to NGPA Section 311 and Replacement of
Facilities, Order No. 525-A, 53 FERC ] 61,140, at 61,467 (1990).
\69\ Id. The Commission also explained in Order No. 525-A that
the advance notification requirement was needed for more extensive
replacement projects under section 2.55(b) because changes could
have occurred since an existing facility was put in place (e.g., the
character of a region shifting from rural to residential), stating
that:
[J]ust because an area was disturbed when the pipeline was
originally installed does not mean that replacing the old pipe with
a new pipe will not potentially raise new environmental concerns.
Such an action must be assessed in light of current land use,
regulations, and concerns about erosion, sediment control, impact on
streams and soil, threatened and endangered species and potential
PCB contamination.
---------------------------------------------------------------------------
42. While our NOPR in this proceeding clarified that section
2.55(a) has always been limited to installations in authorized areas
that have been or will be subject to environmental review, the NOPR
also served to provide an opportunity for parties to convince us that
this limitation is not necessary. Not only do INGAA's comments not
change our view, they serve to reinforce our belief that section 2.55
activities need to be confined to areas included within the existing
right-of-way and previously-used construction workspace by pointing out
that section 2.55 can be relied upon to replace or add auxiliary
facilities to transmission systems that were authorized prior to NEPA
when the Commission's environmental review would have been less
rigorous and might not have identified project impacts that would come
to light with today's greater scrutiny.
4. Compliance With Executive Orders
43. The commentors claim the NOPR fails to follow Executive Orders
directing agencies to weigh the burden
[[Page 72804]]
and benefit of regulations.\70\ They point out that section 2.55 was
intended to avoid the burden of companies' having to obtain case-
specific certificate authorization for certain routine activities, and
argue the purportedly new right-of-way/work space constraint will
preclude some installations of auxiliary facilities under section
2.55(a), and so compel companies to instead submit more individual
certificate applications.
---------------------------------------------------------------------------
\70\ Commenters cite Executive Order No. 13,563, Improving
Regulation and Regulatory Review, 76 FR 3821 (January 21, 2011)
(directing executive agencies and requesting that independent
regulatory agencies such as the Commission ensure, inter alia, that
their regulations have benefits justifying their costs and impose
the least burden possible); Executive Order No. 13,579, Regulation
and Independent Regulatory Agencies, 76 FR 41587 (July 14, 2011)
(requesting that executive agencies, including independent
regulatory agencies such as the Commission, retrospectively analyze
their regulations and that regulations found to be outmoded,
ineffective, insufficient, or excessively burdensome be modified,
streamlined, expanded, or repealed); and Executive Order No. 13,211,
Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use, 66 FR 28355 (May 22, 2001) (requiring
agencies other than independent regulatory agencies such as the
Commission to prepare Statements of Energy Effects describing the
effects of certain significant energy actions on energy supply,
distribution, or use).
---------------------------------------------------------------------------
44. We concur with the commentors' characterization of section
2.55: it was put in place to, and continues to, reduce the burden that
the industry (and Commission) would otherwise bear if every minor
modification to a natural gas facility required case-specific
certificate authorization. Further, while the Commission, as an
independent agency, is not subject to the requirements of the cited
Presidential documents, the Commission has directed staff to perform an
internal assessment of the effectiveness of our regulations and is
continually seeking to streamline the regulations in order to foster
competitive markets, facilitate enhanced competition, and avoid
imposing undue burdens on regulated entities or unnecessary costs on
those entities or their customers.\71\ However, the NOPR, by more fully
describing the types of activities that currently come within the
bounds of 2.55(a), does not trigger any need for assessment of burdens
and benefits, because the NOPR's clarification regarding the scope of
section 2.55(a) does not alter any aspect of the status quo. Where the
NOPR's proposed new regulations would impose an additional burden
(e.g., the landowner notification requirements discussed below), then
in accord with applicable Executive Orders, we explain the benefit we
anticipate these new regulations will provide and quantify the burden
we anticipate compliance will impose.
---------------------------------------------------------------------------
\71\ See, e.g., Storage Reporting Requirements of Interstate and
Intrastate Natural Gas Companies, Order No. 757, 77 FR 4220 (January
27, 2012), FERC Stats. & Regs. ] 31,327, at PP 12-13 (2012).
---------------------------------------------------------------------------
5. Section 2.55 Authorization and Part 157, Subpart F, Blanket
Authorization
45. Under our Part 157, Subpart F blanket certificate regulations,
as under our section 2.55 regulations, a gas company can construct and
operate a limited class of facilities without the need to obtain
separate certificate authorizations for each individual facility.
INGAA, MidAmerican Energy, and National Fuel point to section
157.202(b)(3) of our blanket certificate regulations, which in
designating the types of facilities that may qualify for blanket
authorization, states: ```Facility' does not include the items
described in section 2.55.'' \72\ MidAmerican Energy is apprehensive
this could be interpreted to mean that if an auxiliary facility does
not qualify under section 2.55(a) because it does not meet the right-
of-way/work space constraints, then it also could not qualify as an
eligible facility under the blanket regulations because of the section
157.202(b)(3) limitation, thereby leaving a company with the ``only
option'' of filing an application for case-specific certificate
authorization.\73\
---------------------------------------------------------------------------
\72\ 18 CFR 157.202(b)(3)(2013).
\73\ MidAmerican Energy's Comments at p. 11.
---------------------------------------------------------------------------
46. The Commission responded to a similar concern in 1999 in the
Order No. 603 proceeding that codified the Arkla/NorAm clarification
regarding replacement projects under section 2.55(b) by amending that
section to add the phrase ``will be located in the same right-of-way or
on the same site as the facilities being replaced, and will be
constructed using the temporary work space used to construct the
original facility.'' \74\ The Commission explained that section
157.202(b)(3) only prevents companies from relying on their Part 157
blanket certificates to construct facilities if the facilities qualify
under section 2.55. As clarified by Order No. 603's revision to section
2.55(b), replacement projects are disqualified under that section only
if they will use additional right-of-way or work space than was used in
constructing the facilities being replaced or will result in an
incidental increase in capacity. Thus, section 157.202(b)(3) prevents
companies from relying on their Part 157 certificates for replacement
projects that will not use additional right-of-way or work space and
therefore qualify under section 2.55.\75\
---------------------------------------------------------------------------
\74\ Order No. 603, 64 FR 26572, FERC Stats. & Regs. ] 31,073.
\75\ Order No. 603, 64 FR 26572 at 26580, FERC Stats. & Regs. ]
31,073.
---------------------------------------------------------------------------
47. Both section 2.55 and the blanket certificate program are
intended to provide a streamlined authorization process to avoid the
comparatively greater time, cost, and effort that accompany a case-
specific section 7 certificate application.\76\ To this end, we expect
companies seeking to install, maintain, replace, repair, or upgrade
facilities to look first to section 2.55, and only if an activity is
beyond the scope of that section then to turn to blanket certificate
authority, and only if an activity would exceed blanket authority, then
to file for case-specific section 7 authorization.
---------------------------------------------------------------------------
\76\ While section 2.55 covers a more limited range of
facilities than the blanket program, it offers lighter-handed
regulatory oversight than the blanket program.
---------------------------------------------------------------------------
48. INGAA and National Fuel note we modified section
157.202(b)(2)(i) to specify that replacements which do not meet section
2.55(b) requirements may be eligible for blanket authorization \77\ and
request we do the same for auxiliary installations. We will do so
(although we believe this does not change the way the regulations
currently function) to ensure clarity and consistency in the
application of the regulations.\78\ Accordingly, to explicitly (and
redundantly) specify that auxiliary installations which do not meet
section 2.55(a) requirements may be eligible for blanket authorization,
we will add the following sentence at the end of section
157.202(b)(2)(i): ``Eligible facility includes auxiliary installations
and observation wells which do not qualify under Sec. 2.55(a) of this
chapter because
[[Page 72805]]
they will not satisfy the location or work space requirements of Sec.
2.55(a).'' \79\
---------------------------------------------------------------------------
\77\ Order No. 603 revised 157.202(b)(2)(i) to specify that
eligible facilities include ``replacements that do not qualify under
section 2.55(b) of this chapter because they will have an impact on
mainline capacity.'' Order No. 603, 64 FR 26572 at 26579-80, FERC
Stats. & Regs. ] 31,073.
\78\ We note that in instances where a pipeline company needs to
rely on its Part 157 certificate to construct auxiliary or
replacement facilities because they do not satisfy the location or
work space limitations of section 2.55, the Part 157 blanket
certificate regulations impose no limitations on the placement of
the facilities. While the Commission has indicated previously that
it is contemplated that replacement facilities constructed under
blanket authority would usually be located adjacent to, if not
within, an existing right-of-way, sections 157.202(b)(2)(i) and
157.210 permit the construction of non-main line facilities and main
line facilities, respectively, without restriction on their
location. For example, a company can rely on its Part 157 blanket
certificate to replace the capacity of a segment of obsolete
pipeline with new pipeline that may need to be located at
considerable distance from the old pipeline in order to avoid a
housing development constructed since the old pipeline was installed
or to install auxiliary facilities such as anodes offset from the
existing right-of-way to provide cathodic protection.
\79\ In 1999, the Commission proposed adding the following
sentence at the end of section 157.202(b)(2)(i): ``Eligible facility
includes observation wells.'' Landowner Notification, Expanded
Categorical Exclusions, and Other Environmental Filing Requirements,
Notice of Proposed Rulemaking, 64 FR 27717 (May 21, 1999), FERC
Stats. & Regs. ] 32,540 (1999). Ultimately, the Commission elected
not to include the sentence based on its conclusion at the time that
observation wells could be constructed under section 2.55(a).
Landowner Notification, Expanded Categorical Exclusions, and Other
Environmental Filing Requirements, 64 FR 57374 (October 25, 1999),
FERC Stats. & Regs. ] 31,082, at 30,959 (1999). Commentors in this
proceeding have pointed out that many observation wells, rather than
being drilled to monitor operations at an existing gas storage
facility, are drilled in order to determine whether a planned new
storage facility is feasible, in which case a company may not have
any existing right-of-way and would not be able to meet section
2.55(a) requirements. In view of this, we will include observation
wells in revised section 157.202(b)(2)(i) to ensure that if such
wells are not able to meet section 2.55(a) siting restrictions, they
will then be eligible to be considered for authorization under the
blanket certificate program.
---------------------------------------------------------------------------
6. ``Grandfathering'' Existing Section 2.55(a) Installations
49. For the reasons discussed above, we believe modifying section
2.55(a) to codify right-of-way and work space constraints does no more
than restate existing Commission policy and practice. Nevertheless, we
acknowledge that although these constraints have been clear to the
Commission, they may have been subject to misinterpretation by the
industry.
50. The commentors declare companies have relied on section 2.55(a)
to install facilities that are not in compliance with right-of-way and
work space requirements. As explained above, any such installations are
NGA-jurisdictional facilities constructed and operated without NGA
authority. However, given that section 2.55(a) did not previously
include an explicit description of the inherent right-of-way/work space
constraint, and in view of commentors' claims of companies' good faith
reliance on section 2.55(a) to install facilities which violate this
constraint, we will not require the companies to obtain a blanket or
case-specific certificate authorization for thefacilities purportedly
installed pursuant to section 2.55(a) prior to the effective date of
this rule, provided such facilities comply with all other applicable
federal, state, and local rules and regulations. That said, if we
become aware of facilities installed relying on section 2.55(a) that do
not meet the constraints of that section which are the cause of any
significant adverse environmental impact, we may then require that such
facilities obtain blanket or case-specific certificate authorization.
7. Burden of Section 2.55's Right-of-Way Requirement
51. INGAA argues that we erred by not including the ``additional
time and burden'' of blanket or case-specific section 7 procedures that
will now be necessary for facilities that cannot meet section 2.55(a)
siting requirements.\80\ This objection presumes the section 2.55(a)
right-of-way/work space constraint constitutes a new burden imposed by
this rule. As previously discussed, this not the case, because section
2.55 activities have always been restricted to an authorized right-of-
way or facility site and prescribed work spaces. Activities that exceed
these limits are not covered under section 2.55, and thus no additional
time and burden is being imposed--they remain subject to the same time
and burden that they were before. Consequently, we do not include
activities that did not and will not qualify under section 2.55(a) in
our estimate of the additional time and burden imposed by this rule.
---------------------------------------------------------------------------
\80\ INGAA's March 2013 Comments at p. 5.
---------------------------------------------------------------------------
52. INGAA asserts the ``NOPR would convert all auxiliary
installations outside of existing rights of way and historical work
spaces into Natural Gas Act jurisdictional facility construction that
would require certificate authorization and formal agency
consultation.'' \81\ We concur, but as noted, we will not compel
companies to seek blanket or case-specific authorization for facilities
installed in erroneous reliance on section 2.55(a) unless we find
reason to suspect such facilities are a cause of significant adverse
environmental impact. Where facilities already in place present no such
issues, we find no reason to subject them to further review.
---------------------------------------------------------------------------
\81\ INGAA's March 2013 Comments at p. 22.
---------------------------------------------------------------------------
53. In any event, the NOPR and this Final Rule do no more than
clarify the source of our authority over certain types of facilities.
Therefore, we reject INGAA's claim that we include an estimate of the
burden on companies of filing certificate applications and consulting
with environmental agencies for facilities allegedly `converted' to
blanket or case-specific status.
B. Landowner Notification
54. This Final Rule adopts regulations to provide for advance
landowner notification for auxiliary and replacement projects under
section 2.55 and for maintenance activities under section 380.15. As
previously discussed, we consider it appropriate to give landowners
prior notice to the extent practicable before intruding onto their
property as a courtesy and to avoid potential conflict between
landowners and gas companies. Commentors do not dispute the virtues of
informing landowners of company activities, but insist the notice
procedures described in the NOPR are impractical.
55. In response to commentors' concerns, we will revise the
proposed notification obligations to (1) specify the types of
maintenance activities that merit individual notice; (2) limit notice
to landowners whose property is crossed or used for section 2.55 and
section 380.15 activities; and (3) reduce the prior notice period from
10 days to five days. These modifications should significantly diminish
the burden of complying with the new requirements for prior notice to
landowners.
56. Instead of mandating notice to landowners for all section
380.15 maintenance activities, as proposed in the NOPR, we will only
require prior notice of those more substantial activities that will
result in ground disturbance. In addition, we are reducing the scope of
notification proposed in the NOPR, which would have required that
notice be provided not only to directly affected landowners, but also
to adjacent landowners and to landowners with a residence within 50
feet of a proposed work area.\82\ Commentors assert this is overly
broad and request that we remove abutting landowners and landowners
with a residence within 50 feet of the proposed work area from the
definition of ``affected landowners.'' Although the NOPR would have
required the same scope of notice that companies are required to
provide for projects under the Part 157 blanket certificate
regulations, the commentors have convinced us that more limited
landowner notification requirements are appropriate for companies'
activities under section 2.55 and 380.15, since such projects are
likely to be smaller, take a shorter period of time to
[[Page 72806]]
accomplish, and be less disruptive than blanket certificate projects.
---------------------------------------------------------------------------
\82\ The NOPR defined ``affected landowners'' for purposes of
companies' activities under sections 2.55 and 380.15 as ``owners of
property interests, as noted in the most recent tax notice, whose
property (1) is directly affected (i.e., crossed or used) by the
proposed activity, including all rights-of-way, facility sites,
access roads, pipe and contractor yards, and temporary work space;
or (2) abuts either side of an existing right-of-way or facility
site, or abuts the edge or a proposed right-of-way or facility site
which runs along a property line in the area in which the facilities
would be constructed, or contains a residence within 50 feet of the
proposed construction work area.'' 78 FR at 683, NOPR, FERC Stats. &
Regs. ] 32,696 at P 30 (corss-referenced at 141 FERC ] 61,228).
---------------------------------------------------------------------------
57. Finally, while the NOPR stipulated a 10-day prior notice, we
accept commentors' claim that some activities, particularly
unanticipated maintenance, are not scheduled far enough in advance to
allow for a 10-day prior notice.\83\ In view of this, we will only
require that landowners receive notice five days in advance of
initiating certain activity under section 2.55 or 380.15, which we
anticipate will still allow time for landowners and a company to
discuss any concerns landowners may have regarding companies' planned
activities.
---------------------------------------------------------------------------
\83\ Additionally, commentors state that the 10-day prior notice
period prevents companies from adjusting maintenance schedules due
to weather, equipment availability, permitting processes, etc.
---------------------------------------------------------------------------
1. Jurisdictional Basis and Need for Landowner Notification
58. INGAA asserts that the Commission has no jurisdictional basis
to impose landowner notification requirements for companies'
installations of auxiliary facilities and replacement projects under
section 2.55 or their maintenance activities under section 380.15; \84\
therefore, INGAA argues that the NOPR's proposed landowner notification
requirements for these activities should not be adopted. However, if
the Final Rule does adopt landowner notification requirements, INGAA
asks the Commission to explain what circumstances changed since the
promulgation of Order No. 609 \85\ to merit mandatory prior
notification to landowners before a company commences construction
under section 2.55 or maintenance under section 380.15.
---------------------------------------------------------------------------
\84\ INGAA's March 2013 Comments at p. 7. INGAA cites to
Californians for Renewable Energy, Inc., 133 FERC ] 61,194, at P 26
(2010), to support its statement that ``[t]hus far, the Commission
properly has refrained from exercising jurisdiction over easement or
right-of-way agreements, and has appropriately deferred the formal
resolution of disputes in such matters to the courts.'' We agree
that formal resolution of disputes over the terms of easements and
right-of-way agreements belong in the courts and we are not claiming
jurisdiction over these matters by imposing landowner notification
requirements for Commission-authorized activities.
\85\ Order No. 609, 64 FR 57374 (October 25, 1999), FERC Stats.
& Regs. ] 31,082 (1999).
---------------------------------------------------------------------------
59. INGAA points out \86\ that in Order No. 609 the Commission
determined that there was no need for landowner notification because
section 2.55(b) replacements occur within an ``existing right-of-way
and subject to an existing easement agreement, which dictates the
pipeline's right to obtain access to maintain the facilities.'' \87\
However, Order No. 609 also stated that ``prudence would dictate that
the pipeline should give the landowner as much advance warning as
possible to avoid misunderstandings and ill-will.'' \88\
---------------------------------------------------------------------------
\86\ INGAA's March 2013 Comments at pp. 6-7. INGAA also notes
that ``[a] pipeline must own the property or have an easement to
perform maintenance, and the same is true for a pipeline to install,
modify, replace, improve, alter, operate, maintain, access, inspect,
patrol, protect, abandon, etc. auxiliary installations and
replacement facilities.'' Id. at p. 12.
\87\ Order No. 609, 64 FR 57374 at 57382, FERC Stats. & Regs ]
31,082.
\88\ Id.
---------------------------------------------------------------------------
60. Our proposal in the NOPR in this proceeding to adopt landowner
notification requirements for companies' activities under section 2.55
and section 380.15 was prompted by landowners' expressions of concern
to Commission staff during phone inquiries, scoping meetings, and in
other forums due to companies' personnel appearing unannounced on or
near their property. The types of concerns expressed by landowners
arise from construction and maintenance crews arriving unexpectedly to
engage in activities that disrupt, or could disrupt, landowners use of
their property, or damage their property as a result of replacing
facilities; re-grading or replacing access roads; lowering pipelines;
performing anomaly digs; or preventing and controlling erosion. We view
providing prior notice, which some companies avow is routine practice,
as the least burdensome and most practical way to ensure courtesy and
preclude conflicts with landowners. Whenever a company conducts an
activity subject to our jurisdiction and under authority provided by
our regulations,\89\ we have a right and responsibility to impose
appropriate and reasonable conditions on that activity.\90\ Our
responsibility includes ensuring that, to the extent practicable,
landowners are informed in advance when they may be inconvenienced or
the use of their property may be disrupted by companies' jurisdictional
activities to construct auxiliary and replacement facilities under
section 2.55 authority or conduct maintenance activities subject to
section 380.15. Landowners deserve an opportunity to express concerns,
and we want the opportunity to act on those concerns if necessary.\91\
---------------------------------------------------------------------------
\89\ In addition, section 157.14(a)(9)(iv) of the Commission's
regulations requires an applicant for NGA section 7 certificate
authority to certify that it will ``maintain the facilities for
which a certificate is requested in accordance with Federal safety
standards.'' 18 CFR 157.14(a)(9)(iv) (2013). Likewise, NGA section
7(h) gives the certificate holder eminent domain authority to
acquire rights necessary to ``construct, operate, and maintain a
pipe line.'' 15 U.S.C. 717f(h) (2012). See Brian Hamilton, 141 FERC
] 61,229, at PP 24-25 (2012) (Hamilton). Therefore, the Commission
has jurisdiction over maintenance activities, and has the authority
to require landowner notice as a condition of a company's
jurisdictional maintenance activities.
\90\ Contrary to National Fuel's assertion (see National Fuel's
Comments at p. 2), the Commission is not restricted to requiring
landowner notification only for companies' activities under their
Part 157 blanket and case-specific certificates. As discussed supra
PP 13-16 auxiliary and replacement facilities are NGA-jurisdictional
facilities that can be constructed only with the requisite section 7
certificate authority, which the Commission provided when it adopted
section 2.55 as a precursor to the Part 157 blanket certificate
construction program. Further, the authorization to perform
maintenance on gas facilities comes from the certificate authority
under which the facilities were or will be constructed--whether it
be self-implementing section 2.55 certificate authority, Part 157
blanket certificate authority, or case-specific certificate
authority. As the Commission explained in Hamilton, 141 FERC ]
61,229, at P 24, ``[i]t does not necessarily follow, however, that
[a natural gas company] has no responsibilities merely because the
activity neither falls within the replacement of facilities under
section 2.55(b) nor under the blanket construction provisions. When
the Commission authorizes a natural gas company to construct and
operate pipeline facilities, the authority must necessarily include
authority to maintain the pipeline.''
\91\ National Fuel argues that the NOPR relied on NEPA as a
basis for requiring landowner notification for maintenance
activities. National Fuel's Comments at p. 3. It did not. The
rationale for requiring notification is our belief that landowners
should be informed in advance of any activity that will take place
on their property as a consequence of our granting a company an NGA
section 7(c) certificate. The jurisdictional basis for this
requirement is as a condition to the certificate, which we impose to
ensure company actions are consistent with the public interest. The
NOPR, however, did rely on NEPA as a basis for restricting
companies' activities to areas subject to an environmental review,
and as a result thereof, authorized for a particular use.
---------------------------------------------------------------------------
61. Commentors assert that easement agreements are the proper
method for landowners to establish any requirements for prior notice of
company activities on private property,\92\ and note that many of these
agreements specify that no notice is required for maintenance
activities. While we recognize that some landowners agree to forego
prior notice, we nevertheless believe it is prudent for gas companies
to provide such notice. Landowners may misunderstand the terms of an
easement agreement or a subsequent owner may not be aware that the land
is subject to an easement. Therefore, regardless of whether an easement
agreement gives a company a right enforceable under state property law
to enter on property without notice, we believe it is appropriate and
reasonable for our regulations to require that to the extent
practicable companies provide landowners with prior notice
[[Page 72807]]
before commencing certain activities under section 2.55 or section
380.15.
---------------------------------------------------------------------------
\92\ See INGAA's March 2013 Comments at pp. 6 and 12, Southern
Star's Comments at p. 6, Golden Triangle's Comments at p. 4, WBI
Energy's Comments at p. 7, and National Fuel's Comments at pp. 2-3.
---------------------------------------------------------------------------
2. Exceptions to Landowner Notification Requirements
62. Commentors state that if the landowner notification proposals
are adopted, the Final Rule should waive landowner notification to
provide ``for immediate access to emergency gas leaks, acts of God,
investigations related to gas pressure or flow or SCADA signals, or to
respond to One Call notifications on an emergency or routine basis.''
\93\
---------------------------------------------------------------------------
\93\ INGAA's March 2013 Comments at p. 9 and National Fuel's
Comments at p. 5.
---------------------------------------------------------------------------
63. Our regulations provide for a company to take immediate action
in an emergency, as we pointed out in response to a similar concern
regarding the imposition of a 30-day prior notice:
[This] rule does not override other Commission regulations which
permit interstate pipelines to take prompt corrective actions to
address conditions that constitute a safety hazard. Subpart I of
Part 284 of the Commission's regulations exempts emergency
situations from the provisions of section 7 of the Natural Gas Act
and permits a pipeline to take immediate action to alleviate an
emergency situation subject to a subsequent 48-hour reporting
requirement. Section 284.262(a)(1)(iii) of Subpart I defines
emergency as ``Any situation in which . . . immediate action is
required or is reasonably anticipated to be required for the
protection of life or health or for maintenance of physical
property.'' \94\
---------------------------------------------------------------------------
\94\ Interim Revisions to Regulations Governing Construction of
Facilities Pursuant to NGPA Section 311 and Replacement of
Facilities, 52 FERC ] 61,252, at 61,877 (1990). See also section
157.203(d)(3)(i), which states that ``no landowner notice is
required'' for any blanket program ``replacement done for safety,
DOT compliance, environmental, or unplanned maintenance reasons that
are not foreseen and that require immediate attention by the
certificate holder.''
Notwithstanding the foregoing, to assure there will be no hesitation by
gas companies if immediate action is called for, we will specify in
sections 2.55 and 380.15 that: ``For an activity required to respond to
an emergency, the five-day prior notice period does not apply.'' Note
that events that do not necessitate immediate access to system
facilities would not trigger our section 284 emergency provisions, and
therefore would still be subject to a five-day prior notice.
3. Part 157 Landowner Notification Exemption for Replacement Projects
64. Companies are required to provide landowner notice prior to
initiating projects under the Part 157 blanket certificate
regulations.\95\ However, section 157.203(d)(3)(i) of the regulations
provides a notice exemption for replacement projects that would have
been done under section 2.55(b), but for the fact that the replacement
projects are not of the same capacity.\96\ To provide consistency with
new the section 2.55 landowner notification requirements established in
this Final Rule, we will amend section 157.203(d)(3)(i) to provide that
replacement projects that would have been done under section 2.55(b),
but for the fact that the project alters the designed delivery capacity
of the original facility, remains exempt from the landowner
notification requirements of Part 157, as long as the project does not
involve ground disturbance. Because the revised section 2.55(b) notice
requirements require landowner notice for a ground disturbing
replacement project that substitutes in a new same-size facility, it
would be inconsistent to retain the landowner notice exemption in
section 157.203(d)(3)(i) for a ground disturbing replacement project
that alters the capacity of the original facility.
---------------------------------------------------------------------------
\95\ 18 CFR 157.203(d)(1) (2013).
\96\ 18 CFR 157.203(d)(3)(i) (2013). To qualify under section
2.55(b) a replacement project must have a substantially equivalent
designed delivery capacity as the original facility. 18 CFR
2.55(b)(1)(ii) (2013).
---------------------------------------------------------------------------
4. Requirement That Notification Inform Landowners of the Availability
of the Commission's Dispute Resolution Division
65. WBI Energy states that any landowner notification requirements
should not include a requirement that companies provide landowners with
contact information or include a description of the Commission's
Dispute Resolution Division (DRD) Helpline. WBI Energy asserts disputes
concerning easements and right-of-ways for existing facilities are
properly adjudicated in state courts, and not by the Commission. WBI
Energy further argues that including information regarding the DRD in
the notice likely would cause landowners to incorrectly believe that
the Commission is the appropriate venue for resolving property
disputes.\97\
---------------------------------------------------------------------------
\97\ WBI Energy's Comments at pp. 8-9.
---------------------------------------------------------------------------
66. We recognize that the DRD Helpline is not the appropriate venue
for determining the respective rights of companies and landowners under
state property law or for renegotiating the terms of easement
agreements. However, there are instances in which it is appropriate
and/or potentially helpful for landowners to contact Commission staff
to seek informal resolution of a dispute. For example, while a court
would be the appropriate forum to adjudicate a dispute regarding
whether an easement agreement gives a natural gas company the right to
allow another company to lay a fiber optic cable in the pipeline right-
of-way, or to determine the amount of monetary damages caused to a
landowner's property by a company's negligence during construction
activities, it is appropriate for a landowner to contact the Commission
if the landowner believes that a company's planned activities might not
comply with the provisions of section 2.55 (e.g., may not be confined
to the existing right-of-way) or section 380.15 and for the
Commission's staff to contact the company regarding the matter. It also
is appropriate for a landowner to seek the Commission's assistance in
obtaining a company's voluntary agreement to reasonable accommodation
requested by the landowner (e.g., to reschedule backhoe digging planned
by the company for the same day as a back-yard wedding reception). In
this regard, we emphasize that section 380.15(b), Landowner
consideration, states that ``[t]he desires of landowners should be
taken into account in the planning, locating, clearing, and maintenance
of rights-of-way and the construction of facilities on their
property.''
67. While only a court can determine the respective rights of a
company and landowner under the terms of an easement agreement, the
terms of an easement in no way diminish the Commission's NGA authority
over companies' activities to construct or maintain jurisdictional
facilities. Thus, we are adopting our proposal to require that
companies include the DRD Helpline number to facilitate landowners
being able to contact and seek assistance from Commission staff. We
encourage companies to describe the DRD Helpline as a way for
landowners to inform the Commission of concerns regarding a company's
planned activities. We anticipate companies, in providing the DRD
Helpline number, will be able to explain this without implying, as WBI
Energy worries, that a company is acting unlawfully.\98\
---------------------------------------------------------------------------
\98\ Id. In Order No. 609, in response to similar apprehensions
regarding a requirement for companies to include information in
landowner notices on how to contact the Commission's Enforcement
Hotline, we stated we did not believe ``that including a reference
to the Enforcement Hotline implies the company is doing something
unlawful,'' and added that we expected companies ``will be able to
present it as merely being a means to contact the Commission, which
is in fact what it is.'' 64 FR 57374, 57384.
---------------------------------------------------------------------------
5. Landowner Notification for Maintenance Activities
68. Commentors state that the Commission's proposed prior notice
[[Page 72808]]
requirements for maintenance activities may be unnecessary in view of
existing U.S. Department of Transportation (DOT) regulations. DOT's
Pipeline and Hazardous Materials Safety Administration (PHMSA) requires
pipelines to develop a continuing public education program,\99\ which
follows guidance provided by the American Petroleum Institute's (API).
---------------------------------------------------------------------------
\99\ See 49 CFR 192.616 (2013).
---------------------------------------------------------------------------
Recommended Practice 1162.\100\ API's Recommended Practice 1162
requires that ``[w]hen planning pipeline maintenance-related
construction activities,'' gas companies ``should communicate to the
audience affected by the specific activity in a timely manner
appropriate to the nature and extent of activity,'' \101\ and must also
notify landowners in writing biennially of all ``planned major
maintenance/construction activity.'' \102\
---------------------------------------------------------------------------
\100\ See https://mycommittees.api.org/standards/pipeline/1162%20Links/1162nonprintable.pdf.
\101\ See https://mycommittees.api.org/standards/pipeline/1162%20Links/1162nonprintable.pdf, sections 4.10 and C.10.
\102\ Id. See Table 2-1, Summary of Public Awareness
Communications for Hazardous Liquids and Natural Gas Transmission
Pipeline Operators.
---------------------------------------------------------------------------
69. We accept that the PHMSA requirements will be sufficient to
alert landowners to many maintenance activities. We will therefore
modify the prior notice requirement for section 380.15 maintenance
activities proposed in the NOPR in this proceeding by limiting notice
to maintenance activities that will cause ground disturbance.\103\
Given the potential disruption and impact level of maintenance
activities that will cause ground disturbance, we find such activities
merit separate written notice to affected landowners.
---------------------------------------------------------------------------
\103\ However, if in the future, we receive objections
indicating that landowners are not adequately informed of particular
maintenance activities, we may consider applying a separate prior
notice requirement specific to such activities.
---------------------------------------------------------------------------
70. While some of these activities will be included in the PHMSA-
mandated biennial report distributed to landowners, we have no
assurance that all such activities will be. Further, while the PHMSA
report of planned major maintenance can provide a broad overview of a
company's future operations, because the company only issues this
report every other year, it does not give landowners a sufficiently
precise description of when a particular activity will commence and
conclude. We believe that if landowners have notice five days before a
ground disturbing project begins, this will enable companies and
landowners time to confer, coordinate, and avoid simultaneously
undertaking incompatible actions. Finally, we note that PHMSA is
focused on the safe operation of existing facilities, whereas the
Commission purview of the public interest covers a broader set of
concerns. Thus, while PHMSA may find no cause to take into account a
company's activity that inconveniences a landowner but does not
compromise the safe operation of gas facilities, the Commission may
find such an activity to be within the scope of its authority to ensure
the activity is consistent with the public convenience and necessity.
71. MidAmerican Energy and Golden Triangle request that the
Commission provide a definition of maintenance under section 380.15 of
the regulations.\104\ Golden Triangle states that any time its
personnel enter the right-of-way for periodic routine activities (e.g.,
pipe-to-soil readings, leak patrols, surveillance patrols, meter
station inspections, and walking the pipeline right-of-way), a
landowner will construe that entrance as a maintenance activity.\105\
---------------------------------------------------------------------------
\104\ MidAmerican Energy's Comments at p. 5 and Golden
Triangle's Comments at p. 9.
\105\ Golden Triangle's Comments at pp. 9-10.
---------------------------------------------------------------------------
72. We see no need to craft a definition describing all maintenance
activities, although we can say that we do not share Golden Triangle's
apparent view that an intrusion by company personnel onto a landowner's
property for monitoring purposes is not ``maintenance'' so long as the
monitoring does not lead to any additional activity during the same
intrusion. We consider all of the activities identified by Golden
Triangle to be maintenance. However, as stated above, we are scaling
back the NOPR's proposal so that prior notice to landowners will only
be required for ground disturbing maintenance activities. Thus, while
we believe Golden Triangle's examples are maintenance activities, as
long as these minor activities do not cause ground disturbance, they
will not trigger any Commission requirement for advance notice to
landowners.
6. Burden Resulting From Notification Requirement
73. Commentors argue that the NOPR did not fully analyze the
expense and burden associated with requiring landowner notification for
auxiliary, replacement, and maintenance activities.\106\ INGAA stresses
that maintenance alone entails hundreds of thousands of property visits
per year, and that to track these activities company personnel would
have to write descriptions of each activity, visit the site to
determine if new residences were installed since the last patrol, hire
a land agent to identify all affected and abutting landowners, and
craft and mail formal letters.\107\
---------------------------------------------------------------------------
\106\ INGAA's March 2013 Comments at pp. 21-25, Southern Star's
Comments at pp. 5-6, and National Fuel's Comments at p. 2.
\107\ INGAA's March 2013 Comments at p. 10.
---------------------------------------------------------------------------
74. Golden Triangle asserts that the expense of complying with the
proposed landowner notification requirements will have a significant
impact on small entities.\108\ Golden Triangle states that compliance
with the landowner notification requirements will include increased
costs to hire either a contractor or full-time employee, to create a
database or purchase specialty software, and to mail out letters to all
of its right-of-way easement holders.\109\
---------------------------------------------------------------------------
\108\ Golden Triangle claims it is a small entity, which the
Small Business Administration (SBA) Office of Size Standards defines
a natural gas company transporting natural gas as small if its
annual receipts are less than $25.5 million. See 13 CFR Sec.
121.201 (2013), Subsector 486 and SBA's Table of Small Business Size
Standards, effective March 26, 2012, available at: https://www.sba.gov/sites/default/files/files/Size_Standards_Table.pdf.
\109\ Golden Triangle's Comments at pp. 7-8.
---------------------------------------------------------------------------
75. WBI Energy and National Fuel argue that the Commission
underestimated the amount of time it will take companies to prepare the
notices.\110\ WBI Energy and INGAA state that the NOPR's estimate that
there will be three times as many maintenance projects as section 2.55
projects is a gross underestimation.\111\ National Fuel insists that
the NOPR's estimate that the entire industry will spend 39,000 hours to
satisfy the notification requirement is low. National Fuel predicts
that it will be required to spend approximately six hours to prepare
and deliver notices to all affected landowners for each maintenance
activity.\112\ Golden Triangle asserts it will spend at least 16 hours
on 250 letters for mowing or noxious weed control, in addition to the
eight hours it estimates will be required to research, update, and
prepare separate letters for abutting landowners.\113\ In addition,
MidAmerican Energy states that the landowner notification requirement
will impose varying burdens on individual pipelines based on the
activity undertaken. For example, it estimates that farm tap
installation and maintenance will require 5,400 letters per year;
check, operate, and lubricate maintenance will require 30,000 letters
[[Page 72809]]
per year; and leak detection surveys will require 7,700 letters per
year.\114\
---------------------------------------------------------------------------
\110\ WBI Energy's Comments at p. 11 and National Fuel's
Comments at p. 4.
\111\ WBI Energy's Comments at p. 11.
\112\ National Fuel's Comments at pp. 4-5.
\113\ Golden Triangle's Comments at p. 9.
\114\ For maintenance activities on their systems, WBI Energy
estimated it would have to send 19,500 letters, Northern Natural
estimated 45,000 letters, and National Fuel estimated 220,000
letters.
---------------------------------------------------------------------------
76. We acknowledge that given the wide range of maintenance
activities described by commentors, we may have underestimated the
burden of providing prior notice to landowners that would have resulted
from the NOPR's proposal to require that companies notify landowners,
including abutting landowners, prior to commencing any activities under
section 2.55 or section 380.15. However, as discussed above, we are
limiting the requirement for prior notice to activities that will
involve ground disturbance. In addition, we are eliminating the
proposed requirement that companies give prior notice to abutting
landowners and to landowners with a residence within 50 feet of a
proposed work area.
77. We believe these modifications to the NOPR's proposed notice
requirements will alleviate the concerns for the majority of the
activities cited by commentors. As a result, we will use a multiplier
of two times the number of all regulated companies' estimated annual
auxiliary installations under section 2.55(a) \115\ as a reasonable
estimate of the total annual number of auxiliary installations,
replacement projects, and maintenance activities that will require
prior notice to landowners because the activities will result in ground
disturbance. We acknowledge that basing the estimated total number of
activities requiring prior notice on regulated companies' estimates of
the number of section 2.55(a) auxiliary installations undertaken
annually is not going to yield the same number as basing our estimate
on on-site surveys or other verifiable data; nevertheless, we believe
our estimate is reasonable and is as accurate an estimate as can be
readily established for purposes of calculating the anticipated burden.
---------------------------------------------------------------------------
\115\ Based on a survey of nine jurisdictional companies, we
estimate that approximately 7,605 auxiliary installation projects
occur each year.
---------------------------------------------------------------------------
78. As discussed herein, we are also responding to companies'
concerns that it is often impractical to notify landowners at least 10
days prior to the start of any section 2.55 or section 380.15 activity,
as the NOPR's proposal would have required. By requiring that notice be
received five days and not 10 days prior to undertaking any activity,
and limiting notice to only ground disturbing rather than all section
2.55 and section 380.15 activities, we believe companies will be
subject to the minimal inconvenience necessary to ensure that
landowners receive adequate advance notice of activities on their
property that could adversely affect them.
79. Further, while Golden Triangle indicates that compliance with
the landowner notification requirements may require companies to create
a database or purchase specialty software, we do not believe it is
unreasonable or burdensome if the new notice requirements necessitate
that some companies update their databases. All gas companies
(regardless of size) need to know, both to enhance, replace, and
maintain their facilities and to be able to respond to emergencies,
precisely where their rights-of-way lie, how to get to their
facilities, and how to contact the owners of the properties their
facilities sit upon.\116\ The new notice requirements require companies
to do little more than access this existing information and update it
as needed.\117\ Preparation of a notice using information a company
already needs to have on hand should not be burdensome or delay the
commencement or progress of activities under section 2.55 or section
380.15.
---------------------------------------------------------------------------
\116\ Companies should already have such information on file,
given that gas facilities generally were constructed under case-
specific certificates obtained in proceedings in which the companies
were required to give affected landowners notice in accordance with
section 157.6(d), or were constructed under the blanket certificate
regulations which require in section 157.203(d) that companies give
landowners notice of all projects subject to those regulations'
prior notice provisions. In addition, companies need to periodically
update such information to be able to comply with the PHMSA biennial
reporting requirement. Further, since some of the major maintenance
projects included in the PHMSA report will also qualify for prior
notice under our new regulations, companies should be able to use
the same project description to satisfy both PHMSA and Commission
requirements.
\117\ Golden Triangle argues that it does not have a database of
its easement holders. Golden Triangle's Comments at pp. 7-8. We
expect gas companies to have documented the metes and bounds, terms
of, and parties to all existing easements. While we recognize that
this is not a static data set, we expect companies to conduct
systematic reviews to keep this information current. We note Golden
Triangle acknowledges, as discussed above, that its personnel need
to enter its rights-of-way for periodic routine activities including
pipe-to-soil readings, leak patrols, surveillance patrols, meter
station inspections, and walking the pipeline right-of-way. Golden
Triangle's Comments at pp. 9-10. If Golden Triangle does not have a
database that identifies the precise location of and owners of the
properties on which it has its rights-of-way, it should.
---------------------------------------------------------------------------
III. Information Collection Statement
80. The Paperwork Reduction Act (PRA) \118\ requires each federal
agency to seek and obtain Office of Management and Budget (OMB)
approval before undertaking a collection of information directed to ten
or more persons or contained in a rule of general applicability.\119\
The OMB's regulations implementing the PRA require approval of certain
information collection requirements imposed by agency rules.\120\ Upon
approval of a collection of information, OMB will assign an OMB control
number and an expiration date. Respondents subject to the filing
requirements of an agency rule will not be penalized for failing to
respond to the collection of information unless the collection of
information displays a valid OMB control number.
---------------------------------------------------------------------------
\118\ 44 U.S.C. 3501-3520 (2012).
\119\ OMB's regulations at 5 CFR 1320.3(c)(4)(i) (2013) require
that ``[a]ny recordkeeping, reporting, or disclosure requirement
contained in a rule of general applicability is deemed to involve
ten or more persons.''
\120\ 5 CFR 1320 (2013).
---------------------------------------------------------------------------
81. The Commission is submitting the revised reporting requirements
to OMB for its review and approval. The only entities affected by this
rule would be natural gas companies under the Commission's
jurisdiction. The information collection requirements in this Final
Rule are identified as follows.
82. FERC-577, ``Gas Pipeline Certificates: Environmental Impact
Statements,'' identifies the Commission's information collections
relating to the requirements set forth in NEPA and Parts 2, 157, 284,
and 380 of the Commission's regulations. Applicants have to conduct
appropriate studies which are necessary to determine the impact of the
construction and operation of proposed jurisdictional facilities on
human and natural resources, and the measures which may be necessary to
protect the values of the affected area. These information collection
requirements are mandatory.
83. Because this Final Rule adds a landowner notification
requirement for certain activities undertaken pursuant to sections
2.55, 157, and 380.15 of our regulations, the overall burden on the
industry will increase. However, because natural gas companies subject
to our jurisdiction must already notify landowners in conjunction with
NGA sections 3 projects and 7 case-specific applications and when
conducting activities under Part 157 of our regulations, no new
technology will be needed and no start-up costs will be incurred.
Further, even without the new notification requirement, it is standard
practice for some companies to inform landowners prior to coming onto
their property, both as a courtesy and to avoid potential conflicts in
landowner and company activities. Thus, the notification is expected to
be consistent
[[Page 72810]]
with current industry practices for some companies, and consequently to
impose little additional burden on those companies.
84. We are making some minor modifications to the numbers used to
derive our estimate. Because, as revised by this Final Rule, the prior
notice requirement will only apply to those activities that require
ground disturbance (and not to all section 2.55 and section 380.15
activities, as was proposed in the NOPR) and will only require notice
to landowners whose property will be crossed or used (and not to
abutting landowners and landowners with a residence within 50 feet of
the proposed work area, as the NOPR would have required), we believe
the revised estimated burden can no longer be characterized as
underestimated. The vast majority of activities that commentors
identified (principally maintenance, such as mowing, noxious weed
control, and equipment inspection and lubrication) will not be subject
to our revised notification requirements. As a result, we are
decreasing our estimate of the burden to notify landowners for
maintenance activities, as described above in section 6: Burden
Resulting from Notification Requirement.\121\ In the NOPR, Commission
staff requested a small representative sample of nine regulated natural
gas companies to estimate the number of section 2.55(a) activities
conducted each year. One company provided a response too late to be
included in the NOPR estimate. Factoring in this company's data results
in only a trivial change to the burden estimate in this Final Rule.
---------------------------------------------------------------------------
\121\ Supra PP 73-79.
---------------------------------------------------------------------------
85. We are also including the burden associated with the change to
section 157.203(d)(3) which was not included in the NOPR estimates. As
discussed above, to ensure that the landowner notification requirements
in sections 2.55(b) and 157.203(d)(3)(i) are equivalent, we are
revising section 157.203(d)(3)(i) to require notice for ground
disturbing replacement projects that would have qualified under section
2.55 but for the fact that replacement facilities are not of the same
capacity and because of that fact are installed under the blanket
certificate provisions. As a conservative estimate of the number of
such capacity altering replacement projects, we assume that the same
number of replacements take place under the Part 157, Subpart F,
blanket regulations as under section 2.55(b). This is reflected in the
table below. We estimate the additional paperwork burden that this
Final Rule would impose in the table below.
----------------------------------------------------------------------------------------------------------------
Annual number of
Regulation section for new landowner Annual number of filings per Number of hours Total annual
notification requirements respondents (A) respondent \122\ per filing (C) hours (A) x (B) x
(B) (C)
----------------------------------------------------------------------------------------------------------------
18 CFR 2.55(a)...................... 165 46 2 15,180
18 CFR 2.55(b)...................... 165 3 2 990
18 CFR 157.203(d)(3)................ 165 3 2 990
18 CFR 380.15....................... 165 92 2 30,360
---------------------------------------------------------------------------
Total Annual Burden Hours....... ................. ................. ................. 47,520
----------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------
\122\ This column reflects a rounded estimate for each
jurisdictional natural gas company, averaged over all of the
existing 165 such companies.
---------------------------------------------------------------------------
86. Given that some companies currently voluntarily comply with the
new notification requirements, we believe that the actual industry-wide
increase in burden is likely to be less than what we have estimated
here.
Information Collection Costs: The Commission projects the average
cost for all respondents to be as follows: \123\
---------------------------------------------------------------------------
\123\ The cost figures are derived by multiplying the total
hours to prepare a response by an hourly wage estimate of $61 (based
on average civil engineer wages and benefit information obtained
from the Bureau of Labor Statistics' data at https://bls.gov/oes/current/naics4_221200.htm#17-0000 and https://www.bls.gov/news.release/ecec.nr0.htm).
---------------------------------------------------------------------------
$2,898,720 per year for all regulated entities;
$17,568 per year for each regulated entity.
Title: FERC-577.
Action: Revision.
OMB Control Nos.: 1902-0128.
Respondents: Natural gas pipeline companies.
Frequency of Responses: On occasion.
Necessity of Information: The requirement to notify landowners is
necessary for the Commission to carry out its NGA responsibilities and
meet the Commission's objectives of addressing landowner concerns
fairly. The information provided to landowners is intended to
accommodate, to the extent possible, any concerns they may have
regarding a natural gas company's planning, locating, clearing, right-
of-way maintenance, and facility construction or replacement activities
on their property.
Internal Review: The Commission has reviewed the revisions and has
determined that they are necessary. These requirements conform to the
Commission's need for efficient information collection, communication,
and management within the energy industry. The Commission has assured
itself, by means of internal review, that there is specific, objective
support for the burden estimates associated with the information
collection requirements.
87. Interested persons may obtain information on the reporting
requirements by contacting the Federal Energy Regulatory Commission,
888 First Street NE., Washington, DC 20426 (Attention: Information
Clearance Officer, Office of the Executive Director), by phone 202-502-
8663, or by email to DataClearance@ferc.gov. Comments on the
requirements may also be sent to the Office of Information and
Regulatory Affairs, Office of Management and Budget, Washington, DC
20503 [Attention: Desk Officer for the Federal Energy Regulatory
Commission]. For security reasons, comments should be sent by email to
OMB at oira_submission@omb.eop.gov. Please reference OMB Control No.
1902-0128, FERC-577, and Docket No. RM12-11 in your submission.
IV. Environmental Analysis
88. The Commission is required to prepare an Environmental
Assessment or an Environmental Impact Statement for any action that may
have a significant adverse effect on the human environment.\124\ The
Commission has categorically excluded certain actions from these
requirements as not having a
[[Page 72811]]
significant effect on the human environment.\125\ Generally, the
actions proposed to be taken here fall within the categorical
exclusions in the Commission's regulations that are clarifying,
corrective, or procedural and for information gathering, analysis, and
dissemination.\126\ Accordingly, an environmental review is not
necessary and has not been prepared in connection with this rulemaking
.
---------------------------------------------------------------------------
\124\ Regulations Implementing the National Environmental Policy
Act of 1969, Order No. 486, 52 FR 47897 (December 17, 1987), FERC
Stats. & Regs., Regulations Preambles 1986-1990 ] 30,783 (1987).
\125\ 18 CFR 380.4 (2013).
\126\ 18 CFR 380.4(a)(1) and (5) (2013).
---------------------------------------------------------------------------
V. Regulatory Flexibility Act
89. The Regulatory Flexibility Act of 1980 (RFA) \127\ generally
requires a description and analysis of agency rules that will have a
significant economic impact on a substantial number of small entities.
The RFA mandates consideration of regulatory alternatives that
accomplish the stated objectives of a proposed rule and that minimize
any significant economic impact on a substantial number of small
entities. The SBA Office of Size Standards develops the numerical
definition of a small business.\128\ The SBA has established a size
standard for natural gas pipeline companies transporting natural gas,
stating that a firm is small if its annual receipts are less than $25.5
million.\129\
---------------------------------------------------------------------------
\127\ 5 U.S.C. 601-612 (2012).
\128\ 13 CFR 121.101 (2013).
\129\ 13 CFR 121.201, Subsector 486 (2013); see SBA's Table of
Small Business Size Standards, effective March 26, 2012, available
at: https://www.sba.gov/sites/default/files/files/Size_Standards_Table.pdf.
---------------------------------------------------------------------------
90. Golden Triangle disagrees with the Commission's statement that
the proposed rule would not have a significant economic impact on a
substantial number of small entities. We respond to Golden Triangle in
Section B.5 above. We modify the small business impact below based on
the revised estimates used in the information collection section above.
91. The new regulations impose requirements only on natural gas
companies subject to the Commission's jurisdiction, the majority of
which are not small businesses. Most companies regulated by the
Commission do not fall within the RFA's definition of a small entity.
Approximately 165 companies--nearly all of them large entities--would
be potential respondents subject to data collection FERC-577 reporting
requirements. For the year 2011 (the most recent year for which
information is available), only 15 companies not affiliated with larger
companies had annual revenues of less than $25.5 million. Moreover, the
reporting requirements should have no meaningful economic impact on
companies--be they large or small--subject to the Commission's
regulatory jurisdiction. The Commission estimates that the revised cost
per small entity is $17,568 per year. The Commission does not consider
the estimated impact per entity to be significant. Accordingly,
pursuant to section 605(b) of the RFA, the Commission certifies that
this Final Rule should not have a significant economic impact on a
substantial number of small entities.
VI. Document Availability
92. In addition to publishing the full text of this document in the
Federal Register, the Commission provides all interested persons an
opportunity to view and/or print the contents of this document via the
Internet through FERC's Home Page (https://www.ferc.gov) and in FERC's
Public Reference Room during normal business hours (8:30 a.m. to 5:00
p.m. Eastern time) at 888 First Street NE., Room 2A, Washington DC
20426.
93. From FERC's Home Page on the Internet, this information is
available on eLibrary. The full text of this document is available on
eLibrary in PDF and Microsoft Word format for viewing, printing, and/or
downloading. To access this document in eLibrary, type the docket
number excluding the last three digits of this document in the docket
number field.
94. User assistance is available for eLibrary and the FERC's Web
site during normal business hours from FERC Online Support at 202-502-
6652 (toll free at 1-866-208-3676) or email at
ferconlinesupport@ferc.gov, or the Public Reference Room at (202) 502-
8371, TTY (202) 502-8659. Email the Public Reference Room at
public.referenceroom@ferc.gov.
VII. Effective Date and Congressional Notification
95. These regulations are effective February 3, 2014. The
Commission has determined, with the concurrence of the Administrator of
the Office of Information and Regulatory Affairs of OMB, that this rule
is not a ``major rule'' as defined in section 351 of the Small Business
Regulatory Enforcement Fairness Act of 1996. This rule is being
submitted to the Senate, House, Government Accountability Office, and
the Small Business Administration.
List of Subjects
18 CFR Part 2
Administrative practice and procedure, and Reporting and
recordkeeping requirements.
187 CFR Part 157
Administrative practice and procedure, Natural gas, and Reporting
and recordkeeping requirements.
18 CFR Part 380
Environmental impact statements, and Reporting and recordkeeping
requirements.
By the Commission.
Kimberly D. Bose,
Secretary.
In consideration of the foregoing, the Commission amends Parts 2,
157, and 380, Chapter I, Title 18, Code of Federal Regulations, as
follows:
PART 2--GENERAL POLICY AND INTERPRETATIONS
0
1. The authority citation for Part 2 continues to read as follows:
Authority: 5 U.S.C. 601; 15 U.S.C. 717-717z, 3301-3432; 16
U.S.C. 792-828c, 2601-2645, 42 U.S.C. 4321-4370h, 7101-7352.
0
2. Amend Sec. 2.55 by:
0
a. Adding a sentence to the end of paragraph (a)(1);
0
b. Revising paragraph (b)(1)(ii); and
0
c. Adding paragraph (c).
The revision and additions read as follows:
Sec. 2.55 Definition of terms used in section 7(c).
* * * * *
(a) * * *
(1) * * * The auxiliary installations must be located within the
existing or proposed certificated permanent right-of-way or authorized
facility site and must be constructed using the temporary work space
used to construct the existing or proposed facility (see Appendix A to
this Part 2 for guidelines on what is considered to be the appropriate
work area in this context).
* * * * *
(b) * * *
(1) * * *
(ii) The replacement facilities will have a substantially
equivalent designed delivery capacity, will be located in the same
right-of-way or on the same site as the facilities being replaced, and
will be constructed using the temporary work space used to construct
the existing facility (see Appendix A to Part 2 for guidelines on what
is considered to be the appropriate work area in this context);
* * * * *
(c) Landowner notification. (1) No activity described in paragraphs
(a) and (b) of this section that involves ground disturbance is
authorized unless a company makes a good faith effort to notify in
writing each affected
[[Page 72812]]
landowner, as noted in the most recent county/city tax records as
receiving the tax notice, whose property will be crossed or used as a
result of the proposed activity, at least five days prior to commencing
any activity under this section. For an activity required to respond to
an emergency, the five-day prior notice period does not apply. The
notification shall include at least:
(i) A brief description of the facilities to be constructed or
replaced and the effect the activity may have on the landowner's
property;
(ii) The name and phone number of a company representative who is
knowledgeable about the project; and
(iii) A description of the Commission's Dispute Resolution Division
Helpline, which an affected person may contact to seek an informal
resolution of a dispute as explained in section 1b.21(g) of the
Commission's regulations (18 CFR 1b.21(g)) and the Dispute Resolution
Division Helpline number.
(2) ``Affected landowners'' include owners of property interests,
as noted in the most recent county/city tax records as receiving tax
notice, whose property is directly affected (i.e. crossed or used) by
the proposed activity, including all rights-of-way, facility sites
(including compressor stations, well sites, and all above-ground
facilities), access roads, pipe and contractor yards, and temporary
work space.
0
3. Revise Appendix A to Part 2 to read as follows:
Appendix A to Part 2--Guidance for Determining the Acceptable
Construction Area for Auxiliary and Replacement Facilities
These guidelines shall be followed to determine what area may be
used to construct the auxiliary or replacement facility.
Specifically, they address what areas, in addition to the permanent
right-of-way, may be used.
An auxiliary or replacement facility must be within the existing
right-of-way or facility site as specified by Sec. 2.55(a)(1) or
(b)(1)(ii). Construction activities for the auxiliary or replacement
facility can extend outside the current permanent right-of-way if
they are within the temporary and permanent right-of-way and
associated work spaces used in the original installation.
If documentation is not available on the location and width of
the temporary and permanent rights-of-way and associated work spaces
that were used to construct the original facility, the company may
use the following guidance for the auxiliary installation or
replacement, provided the appropriate easements have been obtained:
a. Construction should be limited to no more than a 75-foot-wide
right-of-way including the existing permanent right-of-way for large
diameter pipeline (pipe greater than 12 inches in diameter) to carry
out routine construction. Pipeline 12 inches in diameter and smaller
should use no more than a 50-foot-wide right-of-way.
b. The temporary right-of-way (working side) should be on the
same side that was used in constructing the original pipeline.
c. A reasonable amount of additional temporary work space on
both sides of roads and interstate highways, railroads, and
significant stream crossings and in side-slope areas is allowed. The
size should be dependent upon site-specific conditions. Typical work
spaces are:
------------------------------------------------------------------------
Typical extra area (width/
Item length)
------------------------------------------------------------------------
Two lane road (bored)..................... 25-50 by 100 feet.
Four lane road (bored).................... 50 by 100 feet.
Major river (wet cut)..................... 100 by 200 feet.
Intermediate stream (wet cut)............. 50 by 100 feet.
Single railroad track..................... 25-50 by 100 feet.
------------------------------------------------------------------------
d. The auxiliary or replacement facility must be located within
the permanent right-of-way or, in the case of nonlinear facilities,
the cleared building site. In the case of pipelines this is assumed
to be 50 feet wide and centered over the pipeline unless otherwise
legally specified.
However, use of the above guidelines for work space size is
constrained by the physical evidence in the area. Areas obviously
not cleared during the original construction, as evidenced by stands
of mature trees, structures, or other features that exceed the age
of the facility being replaced, should not be used for construction
of the auxiliary or replacement facility.
If these guidelines cannot be met, the company should consult
with the Commission's staff to determine if the exemption afforded
by Sec. 2.55 may be used. If the exemption may not be used,
construction authorization must be obtained pursuant to another
regulation under the Natural Gas Act.
PART 157--APPLICATIONS FOR CERTIFICATES OF PUBLIC CONVENIENCE AND
NECESSITY AND FOR ORDERS PREMITTING AND APPROVING ABANDONMENT UNDER
SECTION 7 OF THE NATURAL GAS ACT
0
4. The authority citation for Part 157 continues to read as follows:
Authority: 15 U.S.C. 717-717z.
0
5. Amend Sec. 157.202 by revising paragraph (b)(2)(i) to read as
follows:
Sec. 157.202 Definitions.
* * * * *
(b) * * *
(2)(i) Eligible facility means, except as provided in paragraph
(b)(2)(ii) of this section, any facility subject to the Natural Gas Act
jurisdiction of the Commission that is necessary to provide service
within existing certificated levels. Eligible facility also includes
any gas supply facility or any facility, including receipt points,
needed by the certificate holder to receive gas into its system for
further transport or storage, and interconnecting facilities between
transporters that transport natural gas under part 284 of this chapter.
Further, eligible facility includes main line, lateral, and compressor
replacements that do not qualify under Sec. 2.55(b) of this chapter
because they will result in an incidental increase in the capacity of
main line facilities, or because they will not satisfy the location or
work space requirements of Sec. 2.55(b). Replacements must be done for
sound engineering purposes. Replacements for the primary purpose of
creating additional main line capacity are not eligible facilities;
however, replacements and the modification of facilities to rearrange
gas flows or increase compression for the primary purpose of restoring
service in an emergency due to sudden unforeseen damage to main line
facilities are eligible facilities. Eligible facility also includes
auxiliary installations and observation wells which do not qualify
under Sec. 2.55(a) of this chapter because they will not satisfy the
location or work space requirements of Sec. 2.55(a).
* * * * *
0
6. Amend Sec. 157.203 by revising paragraph (d)(3)(i) to read as
follows:
Sec. 157.203 Blanket certification.
* * * * *
(d) * * *
(3) * * *
(i) No landowner notice is required for replacements which would
have been done under Sec. 2.55 of this chapter but for the fact that
the replacement facilities are not of the same capacity as long as they
meet the location requirements of Sec. 2.55(b)(1)(ii) of this chapter
and do not cause any ground disturbance; or any replacement done for
safety, DOT compliance, environmental, or unplanned maintenance reasons
that are not foreseen and that require immediate attention by the
certificate holder.
* * * * *
PART 380--REGULATIONS IMPLEMENTING THE NATIONAL ENVIRONMENTAL
POLICY ACT
0
7. The authority citation for Part 380 continues to read as follows:
Authority: 42 U.S.C. 4321-4370h, 7101-7352; E.O. 12009, 3 CFR
1978 Comp., p. 142.
0
8. In Sec. 380.15, redesignate paragraphs (c), (d), (e), and (f) as
paragraphs (d), (e),
[[Page 72813]]
(f), and (g) and add new paragraph (c) to read as follows:
Sec. 380.15 Siting and maintenance requirements.
* * * * *
(c) Landowner notification. (1) No maintenance activity that
involves ground disturbance is authorized unless a company makes a good
faith effort to notify in writing each affected landowner, as noted in
the most recent county/city tax records as receiving the tax notice,
whose property will be crossed or used as a result of the proposed
activity, at least five days prior to commencing any activity under
this section. For an activity required to respond to an emergency, the
five-day prior notice period does not apply. The notification shall
include at least:
(i) A brief description of the activity and the effect the activity
may have on the landowner's property;
(ii) The name and phone number of a company representative who is
knowledgeable about the project; and
(iii) A description of the Commission's Dispute Resolution Division
Helpline, which an affected person may contact to seek an informal
resolution of a dispute as explained in section 1b.21(g) of the
Commission's regulations (18 CFR 1b.21(g)) and the Dispute Resolution
Division Helpline number.
(2) ``Affected landowners'' include owners of property interests,
as noted in the most recent county/city tax records as receiving tax
notice, whose property is directly affected (i.e. crossed or used) by
the proposed activity, including all rights-of-way, facility sites
(including compressor stations, well sites, and all above-ground
facilities), access roads, pipe and contractor yards, and temporary
work space.
* * * * *
[FR Doc. 2013-28548 Filed 12-3-13; 8:45 am]
BILLING CODE 6717-01-P
